2004) 8790

an

F.

t Col

the l

tive

coop

examination of game theory (zero-sum and non-zero sum games), wi

he fu

particular emphasis on game theory, this article uses

destructive competition.There are two sorts of gameszero sum and non-zero

the case with commercial competition if one accepts the

Nonzero: The Logic of Human Destiny in which he

non-zero-sum year by year [as] the natural outgrowth of

ARTICLE IN PRESSsum. In zero-sum games there is a winner and a loser. An

$This is a revised version of a paper that was rst presented at the

46th International Institute of Space Law (IISL) colloquium held

during the IAC in Bremen, October 2003.

E-mail address: galloway@lfc.edu (J.F. Galloway).

1Thucydides, The Peloponnesian War (New York; Penquin, 1954),

Book V, pp. 400408.2Thomas C. Schelling, The Strategy of Conflict (Cambridge:

Harvard University Press, 1960).3Robert Wright, Nonzero: The Logic of Human Destiny, New York:

Vintage, 2001, p. 6.0265-9646/$ - see

doi:10.1016/j.spacooperation, conict and competition. For those of usinterested in and committed to the progressive develop-ment of space law, it pays to understand historicalsituations in which we can expect more cooperation andcreative competition and then distinguish those fromscenarios in which there is likely to be conict and

argues that on balance, over the long run, non-zerosum situations produce more positive sums thannegative sums, and more mutual benet than parasit-ism.3 Wright sees the current age of globalizationas one in which relations among nations grow moreunderstanding of the Space Age and the political andlegal environment in which it has developed.

2. Game theory

One way to understand the development of the law ofouter space is to employ game theory. Game theoryhelps us to understand the dynamics and logic of

the market. A game in which all sides lose would be cut-throat commercial competition in which there are tradewars such as occurred during the Great Depression.Another example is the game (or is it a tragedy?)humans play with nature by treating the atmosphere as aplace to dump industrial pollutants.One hopes that over time players will learn to play

non-zero sum games in which the participants all comeout ahead. This is the theme of Robert Wrights book,international relations theory to provide a better notion of Adam Smiths invisible hand and the magic ofand the choices that space lawyers and policy makers face in t

r 2004 Elsevier Ltd. All rights reserved.

1. Introduction

While cooperation is a signicant feature of spaceactivities and has been enshrined in international law,competition (latterly especially economic competition)and conict are also evident. But what is it that causesone type of action to be favored over another? Andwhich is likely to be to the fore in the future? With aSpace Policy 20 (

Game theory and the law

Jonathan

Department of Politics, Lake Fores

Abstract

Cooperation is a major theme of international space law but

conict. What are the trend lines in terms of promoting collec

overview of selected major laws and policies, as they relate tofront matter r 2004 Elsevier Ltd. All rights reserved.

cepol.2004.02.006d policy of outer space$

Galloway

lege, Lake Forest, IL 60045, USA

aw and history also recognize the existence of competition and

goods, commercialization and new military uses of space? An

eration, competition and conict, combined with a theoretical

ll enable us to obtain an overall understanding of the space age

ture.

example would be chess or, in the real world a war such asthat pictured by Thucydides in the Melian Dialogue.1 TheCold War could be seen as a bipolar zero-sum gamewhich the USA won and the USSR lost. It is clear thatmilitary conicts are most susceptible to the logic of azero-sum dynamic in which there is a winner and a loser.2

In a non-zero sum game, there can be winners andlosers. In a winwin game, both sides win. This can be

several billion years of unfolding non-zero sum logic.4

Wright puts himself on the side of progress in evolutionand in human history. He associates his thinking withthat of Francis Fukuyamas The End of History and theLast Man5 and against that of Stephen Jay Gould, whosees humankind as an outgrowth of random evolution, amomentary cosmic accident.6

3. Cooperation

that have come out of the United NationstheAgreement on the Rescue of Astronauts,12 the LiabilityConvention,13 the Registration Convention14 and theMoon Agreement,15 plus the ve principles adopted bythe General Assembly.16 There are numerous nationallaws. Indeed, there is a plethora of international andglobal institutions and programs devoted to cooperationin the peaceful uses of outer space. Among these are theUN Committee on the Peaceful Uses of Outer Space,the International Telecommunication Union (ITU), theWorld Meteorological Organization (WMO) and theInternational Space Station.17

While there has undoubtedly been much positivecooperation in developing the peaceful uses of outerspace both in law and practice some commentators seecooperation as a side game while the real players areplaying for real. In other words, they are playing azero-sum game.

ARTICLE IN PRESS

6Wright (p. 15, p. 267). Gould, Wonderful Life (New York: Norton,

1989).

12Space (1968). 19 UST 7570; TIAS 6599; 672 UNTS 119.

J.F. Galloway / Space Policy 20 (2004) 879088772 Stat. 425438 (July 29, 1958); 42 USC. 2451.8Section 102 (5).9Section 102 (7).10Eilene Galloway, International Institutions to Ensure Peaceful

Uses of Outer Space, in Nandasiri Jasentuliyana, ed., Space Law:

Development and Scope (Westport, CT: Praeger, 1992).11Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, Including the Moon and other

Celestial Bodies (1967). 18 UST 2410; TIAS 6347; 610 UNTS 205.Let us examine and assess mankinds movement intospace as an example of the logic and experience ofcooperation. After the space age began on 4 October1957 with the orbiting of Sputnik, the USA was caughtin a competitive prestige race with the USSR but, ratherthan let this race deteriorate into a zero-sum game, theNational Aeronautics and Space Act of 1958 committedthe USA to, inter alia, peaceful purposes for the benetof all mankind.7 The USA was to be a leader (notthe leader) in The conduct of peaceful activities.8

Furthermore, there was to be cooperation by theUnited States with other nations and groups of nationsin work done pursuant to this Act and in the peacefulapplication of the results thereof.9 Section 205 of theNASA statutue states the Administration, under theforeign policy guidance of the President, may engage ina program of international cooperation in work donepursuant to this Act, and in the peaceful application ofthe results thereof, pursuant to agreements made by thePresident with the advice and consent of the Senate.It is clear that if one major player in a game is

committed to cooperation there is going to be a lot ofcooperation as there has been in law and in programs.10

The prime example in international law is the OuterSpace Treaty of 1967 which commits states, inter alia, toexplore space for the benet and in the interests of allcountries, to desist from national appropriation byclaim of sovereignty, by means of use or occupation, orby any other means, and to undertake not to place inorbit around the Earth any objects carrying nuclearweapons or any other kinds of weapons of massdestruction.11 Then there are four other space treaties

4Wright, p. 7.5 (New York: Avon Books, 1992).See articles I, II & IV.13Convention on International Liability for Damage Caused by

Space Objects (1976). 24 UST 2389; TIAS 762; 961 UNTS 187.14Convention on Registration of Objects Launched Into Outer

Space (1976). 28 UST 695; TIAS 589480; 1023 UNTS 15.15Agreement Governing the Activities of States on the Moon and

Other Celestial Bodies (1984). 18 ILM 1434; 1363 UNTS 3.16(a) Declaration of Legal Principles Governing the Activities of

States in the Exploration and Use of Outer Space.

(b) Principles Governing the Use by States of Articial Earth

Satellites for International Direct Television Broadcasting.

(c) Principles Relating to Remote Sensing of the Earth from

Outer Space.

(d) Principles Relevant to the Use of Nuclear Power Sources in

Outer space.

(e) Declaration on International Cooperation in the Exploration

and Use of Outer Space for the Benet and in the Interest of

All States, Taking into Particular Account the Needs of

Developing Countries.17For annual assessments see the UN series, Highlights in Space:

Progress in Space Science, Technology and Applications, International

Cooperation and Space Law.18Robert D. Kaplan, Warrior Politics (New York: Random House,4. Conict

It is possible that we are at the end point of a zero-sum game in which there has been one winner for alltimethe USA. To advocates of American Empire thisis indeed the case.18 The outcome of the Cold War andthe events since seem to point to a permanent Americanhegemony in terms of military power, economic wealthand cultural outreach. Because there is no other player,the game is over and the law is basically what theUSA says it is or how it interprets existing treaties. Inthis vein, Everett C. Dolman updates the HalfordMackinder thesis as followsWho controls low-Earthorbit controls near-Earth space. Who controls near-2002).

Earth space dominates Terra. Who dominates Terradetermines the destiny of humankind.19

Advocates of a zero-sum conict view the OuterSpace Treaty not as ushering in an era of cooperationfor the human species but as an intermission, a period ofd!etente in a winlose encounter. The players or actors inthe game even engaged in a perverse competition ofwho could out-cooperate whom.20 Since the USA wonthe game, i.e. the Cold War, it is now set to dominatespace. According to these commentators, the USAshould renounce the Outer Space Treaty and claimsovereignty over parts of space.21 It should dominateeconomically and militarily rather than cooperate.22

states do not do this they are in danger of winningPyrrhic victories resulting in loselose outcomes.Nye advises the USA to be less unilateral and more

multilateral, as is tting given international law andtreaty commitments. The USA has a national interest inkeeping world commons secure. What are thesecommons? Nye mentions the seas, the climate, endan-gered species, outer space and the virtual commons ofcyberspace.26 Yet the USA is stepping back from

ings of market forcesin an ever bigger pie. Otherwise,

ARTICLE IN PRESSJ.F. Galloway / Space Policy 20 (2004) 8790 89In short, Robert Wrights vision of human progress isa dream and an illusion. Realpolitiknow Astropoli-tikis the underlying reality of world politics asindicated by the US withdrawal from the ABM Treaty,the plan to build new nuclear weapons, etc.23,24

According to Dolman we actually need to emphasizeconict in order to realize the ultimate perfection ofhumankind as a multiplanetary species.25

The logic here must be the logic of MacKinder,Mahan and Social Darwinism.Some students of strategic power see it as only part of

the game. The real game is a three dimensional chessgame. Joseph S. Nye, Jr. sees world politics as a three-dimensional chess game. The top board is unipolar,while The middle economic board is multipolar andthe bottom board of transnational relations that crossborders outside the control of governments has a widelydispersed structure of power.25 In this type of chessgame, the USA cannot play bipolar chess. It canchoose to dominate militarily; play in a competitivemarket economically; and recognize the power of non-state actors and forces transnationally. Since the lattertwo games take up most of international relations, agreat power or superpower concentrates on the rst atits own peril. Military power has less leverage amonggreat powers than in previous epochs. Now statesshould concentrate on winwin scenarios and non-zerosumness rather than winlose, zero-sum conicts. If

19Everett C. Dolman, Astropolitik: Classical Geopolitics in the Space

Age (London: Frank Cass, 2002). p. 8. Dolman is a professor at

Maxwell Air Force Base.20Everett C. Dolman, Astropolitik: Classical Geopolitics in the Space

Age (London: Frank Cass, 2002). p. 8.21Dolman, pp. 140141.22Dolman, pp. 151, 173. Also, see James W. Canan, Iraq and the

Space Factor, Aerospace America (August, 2003), pp. 3236.23 John Mearsheimer, The Tragedy of Great Power Politics (New

York: W.W. Norton, 2002).24Dolman, p. 182.25The Paradox of American PowerWhy the Worlds Only Super-

power Cannot Go It Alone (New York: Oxford University Press, 2002).p. 140.cut-throat competition either within or between nationswill result in everyone losing. Robert Wright sees thePrisoners Dilemma game as a non-zero sum game inwhich, through learning behavior, i.e. playing the gameover and over both sides can win.29 This has happenedin lab experiments and in history.30

Given the history of the Space Age, we can expectmore and more commercial competition. At the begin-ning there were very few commercial competitors andthey were heavily subsidized and regulated by govern-ments. Now there are many more and many governmentventures have been partly or wholly privatized. In USlaw, there has been a push towards privatization sincethe Communications Satellite Act of 1962 and more

26The Paradox of American PowerWhy the Worlds Only Super-

power cannot Go It Alone (New York: Oxford University Press, 2000).

p. 145.27The Paradox of American PowerWhy the Worlds Only Super-

power cannot Go It Alone (New York: Oxford University Press, 2000).

205 et passim.28Charles Kupchan, The End of the American Era (New York:

Alfred A. Knopf, 2003).29Wright, Nonzero: The Logic of Human Destiny, New York:

Vintage, 2000, p. 57.30Robert Axelrod, The Evolution of Cooperation (New York: Basicproviding leadership as a collective good. It has with-drawn its signature from the International CriminalCourt; not ratied the Comprehensive Test Ban Treaty;withdrawn from the Anti-Ballistic Missile Treaty;refused to enter the Kyoto Protocol; and made somemoves against free trade.27 Playing world politics as if itis a zero-sum game which has ended in hegemony ismyopic from the point of view of history. We mayexpect the USA to have its day in the sunperhaps along unipolar momentbut it will end. Other forces andpowers will tend to make the system multipolar.28 Forspace law, this means that the principles of consensusbuilding in international fora such as the UN, Unispaceand the ITU will be highly relevant and vital.

5. Competition

In game theory, competition can result in both sideswinning or both sides losing. The hope is that mostcommercial competition will resultthrough the work-Books, 1984).

recently with the 1998 Commercial Space Act.31 Eveninternational organizationse.g. Intelsat and Inmarsathave been privatized.32 But for true capitalism tooccur in outer space, there must not only be privatiza-tion on earth but property rights in space. However,in common law countries such as the United States,legal theory dictates that the government must havesovereignty over territory before it can confer titleon its citizens.33 Thus there can be no real propertyrights in outer space because of Article II of theOuter Space Treaty. On the other hand, WayneWhite contends that jurisdictional authority underthe Outer Space Treaty provides most of the protectionstraditionally associated with property rights.34

And James E. Dunstan argues that customaryinternational law, consistent with the Outer SpaceTreaty, has come to develop a regime for property usethat is compatible with private investment.35

The evidence he uses to support this thesis is thepractice of states owning moon rocks, controllingfrequency spectrum and orbital slots, doing businesson Mir, and providing for property rights on theInternational Space Station. Dunstan argues that realproperty rights are not necessary because their func-tional equivalent already exists.

private entities in space.36 Sterns and Tennen makeclear that claims of fee simple ownership of spaceproperty are unnecessary and ineffective to protectprivate interests from interference. What exists toprotect space commerce are national licensing regimeswhich are compatible with Articles VI and IX of theOuter Space Treaty.So capitalism in space already exists and it is growing

in terms of commercial space businesses in communica-tions satellites, remote sensing, GPS, weather satellitesand even space tourism. Nevertheless, space entrepre-neurship is in its infantile stage because of the high costsof launch (about $10 000 per lb) and because the publicperception exists that space is a purview of governmentsand not of the private sector. If these two factors can bechanged, then the new frontier will truly witness a newmillennium.

6. Conclusion

In the meantime, are we witnessing positive changeand progressive evolution through the workings out ofthe logic of non-zero sumness as Robert Wright argues?It appears that we are in terms of the increasing

ARTICLE IN PRESSJ.F. Galloway / Space Policy 20 (2004) 879090This is related to the argument Sterns and Tennenmake when they say, The corpus juris spatialis, and theOuter Space Treaty in particular, contain severalprovisions which recognize and promote the role of

31See United States Space Law http://www:spacebizstation.com/

uslaw.html32David Sagar, The Privatization of INMARSAT, Proceedings of

the Forty-First Colloquium on the Law of Outer Space (AIAA, 1999),

pp. 205223. Jonathan F. Galloway, Privatizing An International

Cooperative? The Case of Intelsat, Proceedings of the Thirty-Ninth

Colloquium on the Law of Outer Space (AIAA, 1997), pp. 144150.33Wayne White, The Legal Regime for Private Activities in Outer

Space, chap. 6 in Edward L. Hudgins, ed., Space: The Free-Market

Frontier (Washington, DC: CATO Institute, 2002), pp. 83111, 84.34Wayne White, The Legal Regime for Private Activities in Outer

Space, chap. 6 in Edward L. Hudgins, ed., Space: The Free-Market

Frontier (Washington, DC: CATO Institute, 2002), pp. 83111, 84.35 James E. Dunstan, Toward a Unied Theory of Space Property

Rights: Sometimes the Best Way to Predict the Weather is to Look

Outside, chap. 16 in Hudgins ed., Space: The Free-Market Frontier(Washington, DC: CATO Institute, 2002), pp. 225226.36P.M. Sterns and L.I. Tennen, Privateering and Proteering on

the Moon and Other Celestial Bodies: Debunking the Myth of

Property Rights in Space, Proceedings of the Forty-Fifth Colloquiumcooperation and in the promise of commerce in space.Yet, caution and prudence should lead us to withholdnal judgment given the plans for new militaryprograms in space.on the Law of Outer Space (AIAA, 2003), 5667, 57.

Game theory and the law and policy of outer spaceIntroductionGame theoryCooperationConflictCompetitionConclusion