Lessons for Space from the Oceans and Poles

Is the governance regime in Antarctica a desirable strategic framework for activities in space, or are the high seas more apt? Do collective action failures in ocean management reveal anything about the prospects for the Antarctic or space? Does fiction, in which strategists work through complex strategic questions, reflect the political realities to be expected at the poles, on the seas, or in space?

Some of the world’s most complex security challenges—including many with Navy equities—are marked less by specific geographies than by their nature as global commons. Like the oceans, shared spaces such as the polar regions and outer space are the focus of intense geopolitical and economic positioning. Considering global commons as a coherent cross-domain area for strategic study holds the potential to shed new light on regions otherwise seen as quite disparate—a prospect all the more relevant as the U.S. Space Force takes the nation into new bureaucratic and strategic terrain. So what can be learned by examining the commons alongside one another?

For starters, commons have some important commonalities, including similar challenges when it comes to defining and implementing national strategy. Yet they also differ in important ways. Identifying these points of divergence is equally valuable for strategy development because the idea of the commons is already used to transport concepts across domains—even if it is not always noticed.

Commons Commonalities

Human activities in space, on the oceans, and at the poles have commonalities that make extrapolating across them appealing. Each represents an area that requires immense technological effort to conquer. Consequently, each has served as a medium for national competition.

The oceans have been a domain for maritime conflict for centuries. Space was famously the backdrop for one of the Cold War’s most dramatic symbolic battles. In Antarctica, similar trends persisted. Seven countries have made claims to parts of the continent, stretching back to the heated British and Norwegian race to plant flags at the South Pole.

The commons also share the potential to be loci of cooperation, particularly through science diplomacy. Yet even these pursuits are subject to the unique position of the commons in international politics. Scientific initiatives, like many activities in the commons, often are governed via soft law—institutions, treaties, international laws and norms—which is built on consensus and ultimately challenging to enforce.

Popular culture has been quick to harness similarities and draw connections across domains, with space and the high seas particularly ripe for cross-pollination. The Rebels in Star Wars operate a fleet, while Star Trek is replete with maritime symbolism—starships, brigs, photon torpedoes, and naval insignia. (Would that real ships had holodecks, though.)

Storytelling is culturally important in helping the defense community conceptualize the evolution of war and politics. The U.S. Naval Academy once hosted a “NavyCon,” where practitioners leveraged science fiction as a mechanism for diving into issues of contemporary relevance. War on the Rocks has posted a fun exploration of “Clausewitz as the Last Jedi.” The naval war novel Ghost Fleet—which mixes its own metaphors of the seas and space in a low-orbit scene replete with swashbuckling themes—addresses these parallels directly, noting on the dust jacket that fiction can be used to “explore the future of war.”

Despite these commonalities, and the utility of comparing the commons across reality and fiction, the international system has not treated all commons as equal. To gain maximum utility from cross-domain studies also requires a detailed accounting of how commons differ in policy.

Not all commons are equal 

The high seas are a global commons, as set forth in the 1982 U.N. Convention on the Law of the Sea and in customary law. Yet “commons” is not necessarily an inherent property: Geographic status as a global common is derived by the consensus of nations. In other words, the oceans are global commons not by any law of God or nature but because they are affirmed to be so by states. The international system casts the high seas into a specific category where all parties have a right to traverse it and use its resources, but also where multilateral enforcement is mostly nonexistent.

It therefore would be difficult for a nation to claim ownership over a random patch of the high seas. Indeed, China’s island-building campaign and the various territorial disputes over small rocks are so contentious—and integral to China’s argumentation—in large part because under contemporary law, territorial rights at sea require a terrestrial anchor. The high seas are res communis, belonging to everyone. And something that is communal is, generally speaking, not subject to claim. The 2016 Permanent Court of Arbitration ruling in favor of the Philippines in its territorial dispute with China reflects this principle.

This is not so onshore, where the idea of terra nullius (unoccupied and unclaimed territory) reigns supreme. In this framework, when a country comes across something that is unclaimed, simply staking a flag can change its legal category. Such is the case most clearly in Antarctica, where countries party to the Antarctic Treaty have agreed to postpone—but not abandon—territorial ambitions in pursuit of science and ecological stewardship. These claims continue to shape political dynamics in the region, where existing claims are an important factor in determining where some states maintain research outposts.

Space offers another example of the ways in which simply transmuting the political realities of one common onto another can run aground. Before humanity ventured into space, many assumed the rules that worked for aviation could extend upward. That turned out not to be the case once Sputnik launched. The United States could have contested that a satellite traversing U.S. space violated territoriality. It chose not to. Consequently, outer space became something qualitatively different from airspace.

Space law continued to evolve from that distinction, borrowing instead from maritime tradition—but with a difference. The Outer Space Treaty imbues a vessel-like status on satellites. These items remain the property of the nation that launched them, similar to ships at sea remaining subject to flag states. And empty patches of space are not subject to claim, just as in the high seas. In a notable distinction between space and the high seas, however, celestial bodies—unlike islands in maritime law—cannot be claimed.

This distinction converges, once again, in fiction. A scene in the novel The Martian explores whether commandeering a Mars lander—by U.S. astronaut Mark Watney—constitutes space piracy. If no country can lay claim to a celestial body, he reasons, perhaps maritime law would apply on Mars, making him a pirate. Yet as one Navy judge advocate general opined in response: “While there is a treaty that says no nation will lay claim to any celestial body, that doesn’t mean that maritime law necessarily applies: Antarctica isn’t owned by any nation, but that doesn’t mean the Law of the Sea applies to the South Pole; it just means that treaty law and international agreements govern.”¹

Here, in one example, are both the lessons and limitations of using commons as tools for developing strategy and policy across domains. In this situation, one common (the high seas) fails to best reflect prospective political realities in another (space), while a third (Antarctica) offers a handy alternative.

Takeaways

The stand-up of the Space Force creates an opportune moment to take this somewhat theoretical discussion and draw some concrete takeaways. Already, Congress is asking the defense community to consider how strategy in space compares to its terrestrial application. The Fiscal Year 2020 National Defense Authorization Act, for example, instructs the Department of Defense to conduct a study on deterrence in space.

The Space Force should take Congress’s lead and pursue an analytic agenda that includes not only technical research but also a robust consideration of strategy. To that end, the Space Force can capitalize on the Navy’s robust analytic history on these issues, leaning into the similarities of strategy in global commons while being alert to some pitfalls implicit in that approach. Finally, the Space Force should be attentive to how it builds a community of strategists to support it. As analysts rush to fill new demands for strategy and policy, it will be easy for many to export concepts from other commons that feel similar but may in fact be at odds with long-term U.S. policy interests.