Abstract
Up to this point this book has mainly examined activities related to space exploration and potential mining operations within the scope of technical, operational and exploratory efforts, mainly of the space agencies around the world. There are, however, major legal and regulatory aspects that apply to efforts such as mining either the Moon or other celestial objects (including asteroids). The Outer Space Treaty, the Moon Agreement and other international agreements and arrangements are clearly relevant to such efforts. This chapter explores and discusses the current international agreements that would need to be considered by any nation or private entity seeking to engage in space mining of the heavens. It examines possible constraints that apply to the “global commons” as this concept is applied to the practical use of outer space and mining of natural resources in space.
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- 1.
The term ‘space exploration’ refers to all activities related to discoveries in outer space and natural resources of the planets (other than those of the Earth) by the use of robotics and human space flights. The term ‘exploitation’ on the other hand means extraction and refinement of natural resources essentially for commercial purposes. See: Ram Jakhu, Twenty Years of the Moon Agreement: Space Law Challenges for Returning to the Moon (2005) Zeitschrift für Luft- und Weltraumrecht, 244.
- 2.
These are: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 27 January 1967 18 UST 2410; TIAS 6347; 610 UNTS 205 [1967 Outer Space Treaty]; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 22 April 1968 19 UST 7570; TIAS 6599; 672 UNTS 119 [1968 Rescue Agreement]; Convention on International Liability for Damage Caused by Space Objects 29 March 1972 24 UST 2389; TIAS 7762; 961 UNTS 187 [1972 Liability Convention]; Convention on Registration of Objects Launched into Outer Space 14 January 1975 28 UST 695; TIAS 8480; 1023 UNTS 15 [1975 Registration Convention]; and, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 18 December 1979 18 ILM 1434; 1363 UNTS 3 [1979 Moon Agreement].
- 3.
As of 4 April 2016, there were 104 States Parties to this Treaty and 25 other States that have signed but not ratified it. For the text of the Treaty, see Appendix to this book.
- 4.
See Ronald L. Spencer, Jr, “International Space Law: A Basis for National Regulation” in Ram S Jakhu, ed, National Regulation of Space Activities (Heidelberg: Springer, 2010), p. 1.
- 5.
As of 4 April 2016, there were 16 States Parties to the Moon Agreement. The 4 other States that have signed but not ratified it are: France, Guatemala, India and Romania. For the text of the Agreement, see Appendix to this book.
- 6.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 [VCLT].
- 7.
Treaty on Outer Space, Hearings Before The Committee on Foreign Relations, United States Senate, Ninetieth Congress, First Session, Executive, D, 90th Congress, First Session, March 7, 13 And April 12, 1967, pp. 33 and 34.
- 8.
UN General Assembly Resolution 1721 (XVI) of 20 December 1961.
- 9.
UN General Assembly, Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, Resolution 1962 (XVIII), adopted without vote on 13 December 1963.
- 10.
Outer Space Treaty, Preamble.
- 11.
Official Records of the General Assembly, Twenty-First Session, First Committee, Summary Records of Meetings, 1492nd Meeting, 17 December 1966, UN Doc. A/C.1/SR. 1492, pp. 427- 428. (Emphasis added). Similarly, the Soviet delegate stated that Article I, Paragraph 1, was not “a mere statement of the rights of States” but was designed “to guarantee that the interests, not only of individual States, but of all countries and of the international community as a whole, would be protected.” UN. Doc. A/A C. 1 05/C. 2/SR. 57 (20 October 1966), at 12.
- 12.
Jerry Coffey, “CELESTIAL BODY,” UNIVERSE TODAY, 27 December 2009, available online at: http://www.universetoday.com/48671/celestial-body/
- 13.
Ibid.
- 14.
Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making, 1972, p.46.
- 15.
Outer Space Treaty, Art. VI.
- 16.
Outer Space Treaty, Art. XIII.
- 17.
Charter of the United Nations, 26 June 1945, CAN TS 1945 No 7.
- 18.
According to Alexandre Kiss, under “international law, abuse of rights refers to a State exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created”: Alexandre Kiss, “Abuse of Rights,” 2006, available online at Oxford Public International Law: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1371 Admitting that the prohibition of abuse of rights is “problematic because of differences in the content of the concept itself” Kiss asserts that the “idea that a subject [State] of rights and competences can misuse them seems to be inherent to legal thinking and to have roots in all legal systems and leads to the establishment of controls on the use of recognized rights.” Ibid.
- 19.
Outer Space Treaty, Art. III.
- 20.
Cited from Erik N. Valters, ‘Perspectives in the Emerging Law of Satellite Communications’ (1970) 5 Stanford Journal of International Studies 53, at 66 - 67. Also cited in Kathryn M. Queeney, Direct Broadcast Satellites and the United Nations, BRILL, 1978, p. 54.
- 21.
Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham L. Rev. 349 (1969), at 351.
- 22.
Ram Jakhu, “Legal Issues Relating To the Global Public Interest in Outer Space,” 32 Journal of Space Law (2006) 31, at 44-46.
- 23.
Cited in Carl Christol, Article 2 of the 1967 Principles Treaty Revisited, IX (1984) Annals of Air and Space Law, 217, at 236.
- 24.
Ibid, at 218.
- 25.
Manfred Lachs, supra note 14.
- 26.
Manfred A. Dauses, THE RELATIVE AUTONOMY OF SPACE LAW, available online at: https://opus4.kobv.de/opus4-bamberg/files/6652/The_Relative_Autonomy_of_Space_LawOCRseA2.pdf.
- 27.
Steven Freeland and Ram S Jakhu, “Commentary on Article II of the Outer Space Treaty” in Stephan Hobe, Bernhardt Schmidt-Tedd & Kai-Uwe Schrogl, eds, Cologne Commentary on Space Law Vol. 1 (Cologne: Carl Heymanns Verlag, 2010) at 53.
- 28.
Declaration of the First Meeting of Equatorial Countries, adopted and signed in Bogota by the Heads of Delegations on December 3, 1976. The text of the Declaration is available online at:
https://bogotadeclaration.wordpress.com/declaration-of-1976/
- 29.
Ram Jakhu, “The Legal Status of the Geostationary Orbit“, VII Annals of Air and Space Law, 1982, pp. 333-352.
- 30.
Under section 403 of the Space Resource Exploration and Utilization Act of 2015 (51 USC Title IV, Pub. L. 114-90; Bill HR 2262), which was signed by President Barack Obama on 25th November 2015, the U.S. Congress issued a disclaimer of extraterritorial sovereignty expressing that “by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”
- 31.
On 16 February 2000, Mr. Gregory Nemitz (Chief Executive Officer of Orbital Development of San Diego, USA) sent a claim to U.S. National Aeronautics and Space Administration (NASA) for payment of a $20 “parking/storage fee” for NASA’s Near Earth Asteroid Rendezvous Shoemaker spacecraft that landed on the asteroid 433 Eros on the basis that “since March 3, 2000 Orbital Development has owned Eros by virtue of a property claim filed on that date with an organization called Archimedes Institute.” (See: http://www.orbdev.com/010309.html) Refuting such a claim, Mr. Edward A. Frankle, the General Counsel with NASA, responded on 9th March 2001 to Mr. Nemitz by expressing NASA’s position that “the Article II of the Outer Space Treaty of 1967, to which the United States is a party, states: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” 610 U.N.T.S. 205, 18 U.S.T. 2410. If Orbital Development or its principals are U.S. nationals, this treaty provision would seem to preclude any claim to own Eros. Therefore, NASA respectfully declines to make the requested payment at this time.” Ibid.
- 32.
Not being satisfied by NASA’s response (Ibid.), Mr. Nemitz took his case to the Federal District Court in the State of Nevada, which dismissed his claim of a private property rights on an asteroid by ruling that “neither the failure [by] … the United States to ratify the … Moon Treaty, nor … the Outer Space Treaty, created any rights in Nemitz to appropriate private property rights on asteroids.” Nemitz v. U.S., Slip Copy, 2004 WL 316704, D. Nev., 26 April 2004. On appeal, the Ninth Circuit Court of Appeals upheld the ruling of the lower court “for the reasons stated by the district court.” Nemitz v. NASA, 126 Fed. Appx. 343 (9th Cir. (Nev.) 10 February 2005).
- 33.
In 2007, the Beijing First Intermediate People’s Court ruled against the Lunar Embassy in China Company, which was selling plots on the Moon, stating that no individual or State could claim ownership of the Moon. In its pronunciation the Court cited the fact that China was a party to the Outer Space Treaty, which prohibits appropriation of outer space and its parts. See: Court Rejects Lunar Embassy’s Right of Moon Land Selling, Xinhua News Agency March 17, 2007, available online at: http://www.china.org.cn/english/China/203329.htm. Also see:
Beijing authorities suspend license of “Lunar Embassy”, November 07, 2005, available online at: http://en.people.cn/200511/07/eng20051107_219609.html
- 34.
In 2012, Judge Alain Michaud declared Sylvio Langevin, a Quebec man, to be a quarrelsome litigant barring him from filing lawsuits claiming ownership over nine planets, four of Jupiter’s moons as well as the space between the heavenly bodies. See: Brian Daly, Man sues for ownership of most of solar system, QMI Agency, 1 March 2012, available online at: http://cnews.canoe.com/CNEWS/WeirdNews/2012/03/01/19445846.html
- 35.
Principle of jus cogens, according to Article 53 of the VCLT is “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” A treaty is void if, at the time of its conclusion, it conflicts with a norm of jus cogens. Ibid.
- 36.
Steven Freeland and Ram S Jakhu, supra note 27, at 63.
- 37.
For example, Tanja Masson-Zwaan, has been reported to be of the opinion that “existing treaties do not seem to prohibit ownership of extracted resources”; in Marcia S. Smith, “Posey, Kilmer Introduce ASTEROIDS Act To Grant Property Rights to Asteroid Resources”, 10 July 2014, available online at http://www.spacepolicyonline.com/news/posey-kilmer-introduce-asteroids-act-to-grant-property-rights-to-asteroid-resources
- 38.
Section 403 of the Space Resource Exploration and Utilization Act of 2015 (51 USC Title IV, Pub. L. 114-90; Bill HR 2262). For the text of the Act, see Appendix to this book.
- 39.
The Text of the IISL Position Paper is available at IISL: http://www.iislweb.org/docs/SpaceResourceMining.pdf
- 40.
Ibid, section II.2.
- 41.
“Obiter dictum” is only an observation which is not necessary or important in determining the central issue in a case before a court of law.
- 42.
The Case of the S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
- 43.
For details, see Ram Jakhu, supra note 22, at 41-42.
- 44.
Ibid.
- 45.
Some space law writers are of the opinion that space natural resources can be exploited, without the constraints of Article II ‘appropriation’ based on the analogy with the law of the sea. For example. Fabio Tronchetti is of the view that, “While some authors express the view that the restriction in Article II [of Outer Sapce Treaty] applies equally to outer space and its resources, others, the majority, argue that by analogy with the rules regulating the freedom of the high seas, the appropriation of space resources merely forms part of the freedom of exploration and use of outer space. This paper shares the opinion of the second group of authors”: See Fabio Tronchetti, “The Moon Agreement In The 21st Century: Addressing Its Potential Role in the Era of Commercial Exploitation of the Natural Resources Of The Moon And Other Celestial Bodies”, 36 Journal of Space Law (2010) 489, at 498. (Footnotes omitted and emphasis added). This sort of analogies are appropriately refuted by Philip de Man, See Philip de Man, Exclusive Use in an Inclusive Environment: The Meaning of the Non-Appropriation Principle for Space Resource Exploitation, (2016), pp. 15-26 (Forthcoming publication in Springer: The Space Regulations Library Series).
- 46.
The IISL Position Paper, supra note 39, section II.2.
- 47.
Steven Freeland and Ram S. Jakhu, supra note 27, at 53.
- 48.
United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).
- 49.
Manfred Lachs, supra note 14, p.21.
- 50.
Steven Freeland and Ram S Jakhu, supra note 27, at 59.
- 51.
It is important to note in this regard that the Outer Space Treaty uses the terms “exploration and use” but not “exploitation” of outer space. As indicated above, it is generally agreed that the “use” of outer space as prescribed in Article I of the Outer Space Treaty presumably encompasses “resource exploitation”. However, it is only the Moon Agreement that specifically uses the term “exploitation”. States parties to the Moon Agreement therefore have a more explicit basis for asserting their right to exploit the natural resources of outer space.
- 52.
Steven Freeland and Ram S. Jakhu, supra note 27, at 60.
- 53.
Moon Agreement, Art. 11(1) [emphasis added].
- 54.
Moon Agreement, Art. 11(5).
- 55.
For instance, Article 11(7) of the Moon Agreement sets out the main purposes of the international regime to be established as including the following:
-
(a)
The orderly and safe development of the natural resources of the Moon;
-
(b)
The rational management of those resources;
-
(c)
The expansion of opportunities in the use of those resources;
(d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.
-
(a)
- 56.
For detailed discussions, see Joint Statement on the benefits of adherence to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 by States Parties to that Agreement; Committee on the Peaceful Uses of Outer Space Legal Subcommittee, Forty-seventh session; UN Doc A/AC.105/C.2/2008/CRP.11 of 2 April 2008; see also Ram Jakhu and Maria Buzdugan, “The Role of Private Actors: Commercial Development of the Outer Space Resources, Including Those of the Moon and other Celestial Bodies: Economic and Legal Implications,” 6 Astropolitics, (2008), pp. 201, at 221 et seq.; Vid Beldavs, “The International Lunar Decade”, The Space Review, 13 January 2014,online: The Space Review http://www.thespacereview.com/article/2431/1.
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Jakhu, R.S., Pelton, J.N., Nyampong, Y.O.M. (2017). The International Legal Framework. In: Space Mining and Its Regulation . Springer Praxis Books(). Springer, Cham. https://doi.org/10.1007/978-3-319-39246-2_10
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