Abstract
The issue of space resources is polarizing and fraught with misinformation and hyperbole. The purpose of this chapter is to dispose of the political narrative, posturing and hyperbole surrounding space resources and provide an objective analysis that briefly discusses the law surrounding the issue of space resources, a brief legislative history and a discussion of the legal theory, arguments and issues surrounding the model of space resources. Additionally, this briefing will discuss the potential geopolitical effects and consequences the paradigm of space resources could manifest as well as the pitfalls the concept might create internationally.
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- 1.
See generally, UN General Assembly Resolution 2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html
- 2.
Res communis is a concept derived from Roman property law that refers to the light and the air. See Merriam-Webster Dictionary at https://www.merriam-webster.com/dictionary/res%20communes. See also, Black’s Law Dictionary, Sixth Edition, res communes—“In the civil law, things common to all; that is, those things which are used and enjoyed by everyone, even in the single parts, but can never be exclusively acquired as a whole, e.g. light and air.” The idea behind res communis in the reference to both the Antarctic Treaty and the Outer Space Treaty is that no sovereign can extend (state) ownership much in the same way no one can extend control over the air or the light. In other words, in the case of outer space and celestial bodies , they belong to no nation . It is notable in regards to usage and passage, the high seas are considered res communis.
- 3.
The Outer Space Treaty does not define the term ‘celestial bodies’, but it is accepted that celestial bodies are any natural body residing outside of the Earth’s atmosphere. This includes everything from stars and planets to meteoroids that have not survived reentry to land on the surface of the Earth. One legal definition that was proffered for celestial body is “natural objects in outer space … which cannot be artificially moved from their natural orbits.” See, M Smirnoff, 1966, “Introductory Report and Summary of Discussions – Draft Resolution on the Legal Status of Celestial Bodies”, 9 PCLOS 8, quoting IISL Draft Resolution, principle 1. This definition opens the potential scenario where a celestial body such as an asteroid or comet could be moved by artificial means, which would no longer make it legally a celestial body, thus subjecting it to national appropriation.
- 4.
Dennis Hope is the creator of Lunar Embassy. He emphasizes the express lack of a prohibition for private individuals to own celestial bodies in the Outer Space Treaty to assert a claim to the Moon in its entirety. He has built a substantial business selling parcels of lunar real estate to private citizens. His claims also extend to other planets in the solar system using the same legal rationale. See Lunar Embassy at https://www.lunarembassy.com/. At this point, Mr Hope’s claims have neither been challenged nor supported by the US government , but the government of China did move against an office Lunar Embassy opened in that company and shut down Mr Hope’s activities in that country .
- 5.
Gregory W. Nemitz, the self-proclaimed owner of Asteroid 433, Eros, fined NASA US$20 for landing the NEAR/Shoemaker spacecraft on the surface of the asteroid on 12 February 2001. NASA refused to pay the fine and Nemitz subsequently filed a pro se lawsuit in the federal district court for the district of Nevada alleging a taking under the 5th Amendment of the US Constitution. NASA, through the Department of Justice, filed a motion to dismiss arguing Nemitz failed to establish a cognizable property interest in the Eros asteroid , which is required for there to be a taking. The Court agreed with NASA and dismissed Nemitz’s lawsuit. Nemitz appealed to the 9th Circuit Court of Appeals (Nemitz v. N.A.S.A., 126 Fed.Appx. 343 (Cir. 2005)), which upheld the district court’s decision. Although Nemitz filed both his lawsuit and appeal pro se, he reportedly received assistance from a space law attorney who is a known advocate of space property rights. Information on Nemitz’s website suggests he manufactured the dispute for the specific reason of proving the existence of private property rights in celestial bodies and the resources affixed and within. Nemitz maintains a website detailing his exchange with NASA and the Court at http://www.erosproject.com/
- 6.
One solution to alleviate the restrictions of the Outer Space Treaty with regards to private property ownership is to invoke Article XVI, which allows withdrawal from the Treaty. Withdrawal from the Outer Space Treaty would not leave a legal vacuum as many of the principles and legal obligations could continue as customary international law while eliminating the res communis principle. At this juncture, there is little political appetite to withdraw from the Treaty and may remain so for the foreseeable future.
- 7.
There is no legal or historical rationale for excluding resources from the prohibition of ownership of ‘celestial bodies’ in Article II. Indeed, the only reason for supporting an interpretation that separates resources from the prohibition surrounding celestial bodies is to facilitate a geopolitical/industry end. In other words, proponents of space resources are taking advantage of allowance of broad interpretations of the Outer Space Treaty to make the Outer Space Treaty say what they want. On the other hand, even though a prohibition on resource extraction is not expressly prohibited in Article II of the Outer Space Treaty, a prohibition could be implied taking into consideration the context of its sibling the Antarctic Treaty and its 1992 Environmental Protocol, which specifically bans mineral exploitation . See Protocol on Environmental Protection to the Antarctic Treaty, art. 7, available at http://www.ats.aq/documents/recatt/Att006_e.pdf. But see, Protocol on Environmental Protection to the Antarctic Treaty, art. 25(5)(a), which stipulates “the prohibition on Antarctic mineral resource activities contained therein shall continue unless there is in force a binding legal regime on Antarctic mineral resource activities that includes an agreed means for determining whether, and, if so, under which conditions, any such activities would be acceptable.” (Emphasis added.)
- 8.
During the negotiations for the Outer Space Treaty, the United States insisted on the recognition of the right for private entities to perform commercial activities in outer space. The USSR pushed back, insisting only government actors be allowed to perform outer space activities; however, a compromise prevailed where the view of the US was accepted by the USSR with the caveat outer space activities by private entities must be authorized and supervised.
- 9.
“The United States Government will provide a climate conducive to expanded private sector investment and involvement in civil space activities, with due regard to public safety and national security. Private sector space activities will be authorized and supervised or regulated by the government to the extent required by treaty and national security.” National Security Decision Directive Number 42, paragraph III (B) available at http://marshall.wpengine.com/wp-content/uploads/2013/09/NSDD-42-National-Space-Policy-4-Jul-1982.pdf
- 10.
See generally, Commercial Space Launch Act [Public Law 98–575], available at http://uscode.house.gov/statutes/pl/98/575.pdf
- 11.
In this way, Article VIII makes objects launched into space similar in principle to the legal status of federal warships, which are not subject to the law of finds or pure salvage unless they are expressly abandoned. See R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 742 F.Supp.2d 784, 793 (E.D.Va. 2010) available at http://law.justia.com/cases/federal/district-courts/FSupp2/323/724/2492882/
- 12.
See generally, UN Resolution 34/68. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/moon-agreement.html
- 13.
See Matthew Kleinman, Jennifer Lamie, and Maria Vittoria, The Laws of Spaceflight, p. 66.
- 14.
See Common Heritage of Mankind Principle, Encyclopedia.com available at http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/common-heritage-mankind-principle
- 15.
The Law of the Sea Convention and the Moon Agreement were created concurrently, which makes them sibling treaties . In fact, the Moon Agreement has more in common with the Law of the Sea than it does with the Outer Space Treaty.
- 16.
See United Nations Convention on the Law of the Sea (UNCLOS), art. 170, available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
- 17.
The Moon Agreement was open for signature and ratification at the end of the term of President Jimmy Carter, who supported ratification. Due in part to persistent lobbying by the L5 Society , the Senate Foreign Relations Committee refused to hold a session on ratification. When President Reagan took office, he considered both the Law of the Sea and the Moon Agreement and made the decision to continue negotiations to annex the Law of the Sea and put the Moon Agreement off to the side. See generally, UN Moon Treaty Falling to US Opposition Groups, L5 News, March 1982, available at http://www.nss.org/settlement/L5news/1982-opposition.htm, for a brief history of the Moon Treaty and the L5 Society’s involvement.
- 18.
Those countries ratifying/acceding to the Moon Agreement are Australia (1986), Austria (1984), Belgium (2004), Chile (1981), Kazakhstan (1981), Kuwait (2014), Lebanon (2006), Mexico (1991), Morocco (1993), Netherlands (1983), Pakistan (1986), Peru (2005), Philippines (1981), Saudi Arabia (2004), Turkey (2012), Uruguay (1981) and Venezuela (2016). See generally, UN Treaty Collection at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIV-2&chapter=24&clang=_en for the status of the Moon Treaty.
- 19.
One of the sticking points of the Moon Treaty with the Big Three is the inclusion of the common heritage of mankind language. Ironically, this same language appears in the UN Convention on the Law of the Sea to which both the Russian Federation and China have ratified ; the US is a signatory. See, Thomas Gangale, Myths of the Moon Agreement, American Institute of Aeronautics and Astronautics, p. 8, available at https://ops-alaska.com/publications/2008/2008_AIAA-2008-7715.pdf
- 20.
The text of H.R. 5063 is available at https://www.congress.gov/113/bills/hr5063/BILLS-113hr5063ih.pdf
- 21.
The lack of a hearing over the space resource provisions of H.R. 2263 likely saved it from suffering the same fate as H.R. 5063 in the 113th Congress. After passing through Committee, H.R. 2263 and its space resource provisions went on to be passed by both the House of Representatives and the Senate. While space resource proponents laud this as a bipartisan victory, the reality is Democrats who voted for the final bill did so as a compromise to pass provisions of H.R. 2263 of interest to their constituency. The lack of a formal hearing does present a risk the law granting the ‘right’ to acquire space resources has very little legislative history behind it. Indeed, if the law was challenged in a federal court , the court would have to rely on the statute on its face to determine what it is and what it does.
- 22.
The text of Public Law 114-90 can be found at https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf
- 23.
The space resource provisions within H.R. 2263 became Title 51, Chapter 513 of the United States Code, available at http://uscode.house.gov/view.xhtml?path=/prelim@title51/subtitle5/chapter513&edition=prelim
- 24.
In particular the opening sentence of Article I, paragraph 1 is pertinent: “The exploration and use of outer space” (emphasis added).
- 25.
See Taylor R. Dalton, Developing the Final Frontier: Defining Private Property Rights on Celestial Bodies for the Benefit of All Mankind, Cornell Student Law Papers, August 16, 2010, pp. 15–16, available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1041&context=lps_papers
- 26.
The term of what constitutes use is much debated in the legal community and the concept of space resources has only increased the debate. Essentially, it is agreed that ‘using’ resources in situ is acceptable under the Outer Space Treaty. ‘In situ’ refers to the use of resources to build, maintain and support installations and activities on celestial bodies . In other words, using resources to live off the land is acceptable under the Outer Space Treaty.
- 27.
See Taylor R. Dalton, Developing the Final Frontier: Defining Private Property Rights on Celestial Bodies for the Benefit of All Mankind, Cornell Student Law Papers, 16 August 2010, p. 16, available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1041&context=lps_papers
- 28.
See id.
- 29.
51 U.S.C. § 51303 specifically alludes to use in Article I, paragraph 1 in that “[a] United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport , use, and sell the asteroid resource or space resource obtained in accordance with applicable law , including the international obligations of the United States.” Significantly, the US law not only allows use of but also the sale of space resources. As noted in Footnote 21, in situ use of resources is accepted. It’s the conversion of those resources for sale that is questionable.
- 30.
Notably, per Article VIII of the Outer Space Treaty, the personnel and/or spacecraft performing the activity remain under the continuing jurisdiction and color of law of the nation where they launched from, which would be the US in this case .
- 31.
Significantly, original appropriation also involves land and in fact the act of homesteading is in and of itself an act of appropriation.
- 32.
See Draft law on the exploration and use of space resources, Commentary to Article 1, pp. 3–6 available at http://www.gouvernement.lu/6481974/Draft-law-space_press.pdf
- 33.
Proponents of space resources point to the fact the Outer Space Treaty is silent on the topic of resources and uses that silence to claim mining is not forbidden to create the theory of appropriation of space resources. However, while the Treaty says nothing to forbid mining, they assume that silence permits them to fill in the blanks and that the supposition mining of resources must be allowed. Indeed, a strict reading of the Outer Space Treaty in the historical context of Antarctica, which has been analogized to the Outer Space Treaty by several authorities, including the federal district court in Washington, DC, would argue for an interpretation of Article I and Article II that mining would be prohibited. See generally, Beattie v. United States, 756 F.2d 91 (D.C. Cir. 1984) available at https://law.resource.org/pub/us/case/reporter/F2/756/756.F2d.91.84-5413.html (where the district court analogized the Outer Space Treaty to Antarctica when deciding whether it had jurisdiction to hear a claim that arose in Antarctica under the Federal Torts Claims Act).
- 34.
Less than a month after the Commercial Space Launch Competitiveness Act was signed into law , the Board of Directors for the International Institute of Space Law (ISSL) issued a consensus statement declaring that the concept of space resources does not violate the Outer Space Treaty. The tone of the public relations statement accompanying the statement gave the impression there was harmony amongst the Board members in coming to the consensus, but reportedly there was at least one member of the Board who did not immediately agree the US law harmonized with the Outer Space Treaty. The 25 December 2015 statement is available at http://www.iislweb.org/docs/SpaceResourceMining.pdf
- 35.
Proponents of space resources push back on this issue by asserting that mineral-rich asteroids are so prolific that private companies will not interfere with their respective operations .
- 36.
See Footnote 35.
- 37.
Natural capital is defined as indispensable resources and benefits, essential for human survival and economic activity, provided by the ecosystem. Natural capital is commonly divided into renewable resources (agricultural crops, vegetation and wildlife) and non-renewable resources (fossil fuels and mineral deposits). See http://www.businessdictionary.com/definition/natural-capital.html
- 38.
The concept of space resources and the supporting law is also intended to provide a ‘legal’ foundation to encourage financiers to invest the billions that will be needed to develop the technology and techniques required to extract space resources. This has created the desired effect as Luxembourg was not only motivated to create its own law but also decided to invest a substantial amount of money into the development of the industry, including direct investment in several asteroid-mining companies. It appears that Luxembourg has the goal through this initiative to become an economic hub to liquidate and/or become an economic exchange for space resources for the European Union, which would be consistent with its involvement with terrestrial mineral trading . See generally, SpaceResources.lu at http://www.spaceresources.public.lu/en/index.html
- 39.
Aside from the US, the United Arab Emirates (UAE), Japan and China either have or reportedly are drafting domestic space laws that include space resource provisions . The UAE is likely positioning itself as a hub for the economic exchange of space resources in the Middle East in much the same way as Luxembourg is positioning itself in the European Union . The UAE’s position runs contrary to its neighbours Kuwait and Saudi Arabia who have acceded to the Moon Agreement.
- 40.
The author was invited to be an Observer to the Working Group. Information regarding the Space Resources Working Group is available at http://law.leiden.edu/organisation/publiclaw/iiasl/working-group/the-hague-space-resources-governance-working-group.html
- 41.
This will be discussed in more detail in the next section.
- 42.
The Homestead Act of 1862 [Public Law 37-64, 05/20/1862] was a sovereign grant of territory by the federal government of the US that was formerly held by Native Americans. The Act allowed any adult citizen , or intended citizen , who had never borne arms against the US government to claim 160 acres of surveyed government land. Claimants were required to ‘improve’ the plot by building a dwelling and cultivating the land. After five years on the land, the original filer was entitled to the property, free and clear, except for a small registration fee . Title could also be acquired after only a six-month residency and trivial improvements, provided the claimant paid the government US$1.25 per acre. Notably, the grant of land did not include mineral rights, which the federal government retained. See Homestead Act 1862, www.ourdocuments.gov, available at https://www.ourdocuments.gov/doc.php?doc=31. While the Homestead Act was an example of original appropriation, the drawback to analogizing space resources with the Act is its proponents’ risk analogizing space resources with a real property interest.
- 43.
Customary international law is defined as international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties . It consists of two components. First, there must be a general and consistent practice of states. This does not mean that the practice must be universally followed; rather, it should reflect wide acceptance among the states particularly involved in the relevant activity. Second, there must be a sense of legal obligation, or opinio juris sive necessitatis. In other words, a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law; instead, there must be a sense of legal obligation to the international community. States must follow the practice because they believe it is required by international law, not merely because they think it is a good idea, or politically useful, or otherwise desirable. The definition of customary international law is nuanced because not all states are equal when considering whether a state’s practice and opinio juris sive necessitatis reaches the level of customary international law. See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012) available at http://caselaw.findlaw.com/us-11th-circuit/1615347.html. In the case of space resources, the State practice and opinio juris sive necessitatis of the United States, which holds a special place and position of prestige in the field of outer space activities, will be given more weight than a state that has a fledgling space programme, and would be more likely considered to be customary international law than those of a state with a nascent space programme.
- 44.
The US space resource law , 51 U.S.C. § 51303, represents bottom-up rulemaking to create international law. Bottom-up rule-making involves lawmaking by private parties, but also has been defined to cover lawmaking made by domestic government actors and government agencies. Conversely, top-down international rulemaking typically centres on a state’s treaty-based commitments or on an intergovernmental institution born from a treaty . The US space resource law represents a bottom-up approach to create a customary interpretation of the Outer Space Treaty. See generally Janet Koven Levit, A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments, The Yale Journal Of International Law, Vol. 30, p. 125, available at http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1237&context=fac_pub
- 45.
China is reportedly drafting its own domestic space law , which allows its private citizens to perform space activities and purportedly contains a provision to allow its citizens to extract space resources. A scenario exists where the Chinese government could use the activity of its private citizens gathering space resources to create a customary legal bridge that would unzip the non-sovereignty principle of the Outer Space Treaty and allow China to assert sovereign territorial claims in outer space.
- 46.
While the space resources law has created much rancor in the international community, including disapproval by Russia, China has been relatively quiet about the idea. Several of China’s legal experts have examined the concept of space resources, tacitly accepted the theory and are participating in the development of an international regulatory regime. What is not publicized is China is allowing the US to mature the theory of space resources and do all the heavy lifting, taking all the political punches in the geopolitical arena and then reaping the benefits after the US has done all the work.
- 47.
See generally, Legal Subcommittee 2017, 56th Session, at http://www.unoosa.org/oosa/en/ourwork/copuos/lsc/2017/index.html for a listing of available documents relating to the 56th session.
- 48.
Contribution from Belgium to the discussion under UNCOPUOS Legal Subcommittee on item “General exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources”, V.17-01885 (E), p.3/4 paragraph 4, available at http://www.unoosa.org/res/oosadoc/data/documents/2017/aac_105c_22017crp/aac_105c_22017crp_19_0_html/AC105_C2_2017_CRP19E.pdf
- 49.
Much concern has been expressed by the international community, including the US, over China’s unilateral interpretation of UNCLOS to justify its claim of territorial sovereignty in the South China Sea and potentially other swaths of in international waters. Yet, the US through its attempt to create a customary interpretation of the Outer Space Treaty to justify space resources is arguably following the same practice.
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Listner, M.J. (2018). A Briefing on the Legal and Geopolitical Facets of Space Resources. In: James, T. (eds) Deep Space Commodities. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-90303-3_8
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