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Abstract:
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"Before 2009, the literature on space law simply alleged that the growing population of space debris congesting near-Earth orbits is analogous to Garrett Hardin's ‘Tragedy of the Commons’. These works, however, failed to illustrate how, if at all, the metaphorical model fits the actual situation and, in turn, explain the challenges involved to address the debris problem. The implication was that Earth’s near orbits is a ‘common-pool resource’ (CPR) that would suffer from the hypothesised ‘tragedies’ like all natural resources held in common; that is to say, the environmental degradation and eventual ruin of the resource. To address these concerns, this author has elsewhere scrutinised Hardin’s works and commons solutions in the context of the space debris problem, verifying the arguments from earlier commentators that near-Earth orbits is a ‘Space Commons’ that is susceptible to environmental degradation caused by rational, opportunistically space actors misusing and overexploiting the limited natural resources. An attempt to determine the appropriateness and feasibility of applying Hardin’s commons prescriptions to avert the ‘tragedy’ by converting the institutional arrangement of outer space from the existing common-property regime to either a private-property or public-property system has also been undertaken. However, challenging the conventional wisdom postulated by Hardin and his disciples is Elinor Ostrom, who was awarded the 2009 Nobel Prize in Economic Sciences for her analyses and works in economic governance. Supported by empirical evidence, she argues for ‘polycentric governance’, or ‘community-based governance’. Under certain conditions community users of the CPR could effectively promote and maintain the long-term preservation of the resource for the benefit of both present and future generations by constructing their regime framework; hereby minimising or even eliminating the necessity for intervention from the government or some external authority. To complete this inquiry for alternative institutional arrangement to govern outer space, this Paper considers Ostrom's works to yield insights if her framework for institutional design could provide a robust governance regime that promotes the optimal management and long-term safety and sustainability of the Space Commons for current and future space appropriators. To that end, this Paper is divided into three parts. Parts One and Two, respectively, scrutinise Hardin’s ‘Tragedy of the Commons’ and Ostrom’s ‘design principles’. They examine the strengths and weaknesses of each author’s institutional solutions to control resource users from acting and behaving opportunistically in their utility of the commons and appropriation of its limited resource units in order to avert the environmental degradation and possible ruin of small-scale natural resources. Part Two also considers the reasons why many commentators since 1990 have departed from the conventional wisdom under the Hardinian model to find Ostrom's institutional arrangement of 'community-based governance' as a compelling alternative to Hardin's prescriptions for robust and sustainable CPR regimes. Part Three applies Ostrom’s design principles to the Earth's near orbits and the debris problem, determining the appropriateness and feasibility of adopting Ostrom's framework to provide an alternative governance regime for the Space Commons."
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