Abstract
The purpose of this article is to explore the challenging context surrounding the non-appropriation principle as recent developments in space law take an unexpected turn towards accelerated commercialization and blurring ethical principles. By analyzing the reinterpretation of the “res communis” regime of outer space, the reader understands that this regime is in transition and gradually slides towards private property rights and trends despite the non-appropriation principle. This raises questions as to competition law rights between private stakeholders (firstcomers vs newcomers) and potential monopolies restricting access to critical resources and services. Such commercial activity must further be closely monitored since it might involve modifying the core identity of a celestial body per se, as in the case of terraforming. Space ethics could provide guidance against such scenarios until an appropriate regulatory regime is agreed upon at the international level. Last, proper antitrust regulation is vital for a prosperous Mars settlement.
He who controls spice controls the Universe.
Frank Herbert, Dune.
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- 1.
51/122. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, UNOOSA, https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/space-benefits-declaration.html. (Retrieved on 2nd October, 2020).
- 2.
Building Blocks for the Development of an International Framework on Space Resources Activities, November 2019, https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht--en-ruimterecht/space-resources/bb-thissrwg--cover.pdf. (Retrieved on 4th October, 2020).
- 3.
The Vancouver Recommendations on Space Mining, OSI, http://www.outerspaceinstitute.ca/docs/Vancouver_Recommendations_on_Space_Mining.pdf.
- 4.
Lyall and Larsen, ‘Space Law: A Treatise’, Routledge, 2017.
- 5.
The US Space Act of 2015 or Title IV of the Commercial Space Launch Competitiveness Act of 2015 (CSLCA) states that: “(Sec. 402) The bill directs the President, acting through appropriate federal agencies, to:
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facilitate the commercial exploration for and commercial recovery of space resources by U.S. citizens;
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discourage government barriers to the development of economically viable, safe, and stable industries for the commercial exploration for and commercial recovery of space resources in manners consistent with U.S. international obligations; and
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promote the right of U.S. citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with such obligations and subject to authorization and continuing supervision by the federal government.
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a U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations”; etc. (SPACE ACT OF 2015).
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- 6.
Which states that “Space resources are capable of being owned”.
- 7.
Which states that: “Subject to the provisions of Article (14) of this Law, the conditions and controls relating to Permits for the exploration, exploitation and use of Space Resources, including their acquisition, purchase, sale, trade, transportation, storage and any Space Activities aimed at providing logistical services in this regard shall be determined by a decision issued by the Council of Ministers or whomever it delegates”.
- 8.
Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, Executive Order, 6 April 2020, https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/. (Retrieved on 30th September, 2020).
- 9.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, UNOOSA, 1979, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html. (Retrieved on 30th September, 2020).
- 10.
NASA Interim Directive (NID) Effective Date: 9 July, 2020 Expiration Date: 9 July, 2021 Planetary Protection Categorization for Robotic and Crewed Missions to the Earth’s Moon NID 8715.128 https://nodis3.gsfc.nasa.gov/OPD_docs/NID_8715_128_.pdf at 5. (Retrived on 30th September, 2020).
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Jonathan Amos, Venus: Will private firms win the race to the fiery planet?, BBC.com, https://www.bbc.com/news/science-environment-54151861, 14 September 2020.
- 12.
Thomas J Herron, 'Deep Space Thinking: What Elon Musk's Idea to Nuke Mars Teaches Us about Regulating the Visionaries and Daredevils of Outer Space' (2016) 41 Colum J Envtl L 553.
- 13.
Jeff Foust, ‘NASA offers to buy lunar samples to set space resources precedent’, Space News, 10 September 2020, https://spacenews.com/nasa-offers-to-buy-lunar-samples-to-set-space-resources-precedent/. (Retrieved on 20th September, 2020).
- 14.
Ibid.
- 15.
David Collins, ‘Efficient Allocation of Real Property Rights on the Planet Mars’ (2008) 14 BU J Sci & Tech L 201.
- 16.
Richard Posner, ‘Natural Monopoly and its Regulation’, Cato Institute, 1999.
- 17.
Tyler Conte, ‘Property Rules for Martian Resources: How the Space Act of 2015 Increases the Likelihood of a Single Entity Controlling Access to Mars’ (2019) 84 J Air L & Com 187 (CONTE).
- 18.
United Nations Conference on Environment and Development (UNCED), UN, https://www.un.org/esa/dsd/resources/res_docukeyconf_eartsumm.shtml. (Retrived on 2nd October, 2020).
- 19.
Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries 2001, UN, 2001, https://legal.un.org/ilc/texts/instruments/english/commentaries/9_7_2001.pdf. (Retrived on 4th October, 2020).
- 20.
Convention on International Liability for Damage Caused by Space Objects, UNOOSA, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html. (Retrieved on 4th October, 2020).
- 21.
Robert D Pinson, ‘Ethical Considerations for Terraforming Mars’ (2002) 32 Envtl L RepNews & Analysis 11333.
- 22.
CONTE, supra note 18.
- 23.
SPACE ACT OF 2015, supra note 6.
- 24.
Brandon C Gruner, “A New Hope for International Space Law: Incorporating Nineteenth Century First Possession Principles into the 1967 Space Treaty for the Colonization of Outer Space in the Twenty-First Century” (2004) 35:1 Seton Hall L Rev 299.
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Lucas-Rhimbassen, M. (2021). On the Province of All Marskind. In: Froehlich, A. (eds) Assessing a Mars Agreement Including Human Settlements. Studies in Space Policy, vol 30. Springer, Cham. https://doi.org/10.1007/978-3-030-65013-1_3
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