Legal Issues of the 21st Century, Spring 2003
Professor David Friedman
Topic: Outer Space
Student: Priya Moore
Exclusivity and Rights in the Exploration of Outer Space
There is a general debate whether space should belong to all mankind or belong to those who have the resources to explore space. Below are some specific issues underlying this theme:
A. Right to Explore Particular Areas of Space
Article I of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter “Outer Space Treaty”) states that outer space is open and free for exploration and use by all states. State sovereignty does not extend to outer space. But while this article enunciates the highest ideals of exploration for several decades, the practical reality is that few countries have the economic means to undertake the massive expenses involved in space exploration. Further, many developed countries argue that incentives to invest in exploration cannot exist unless parties have exclusive exploration rights over particular areas of space. Without those exclusive rights, parties would have no assurance that their investments in space exploration would be rewarded with sufficient profits.
B. Sovereignty and Property Rights Over Explored Areas
Article II of the Outer Space Treaty provides that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use, or by any other means. Because no nation has sovereignty over any area of space, there is no legal basis for private parties to assert property claims over tangible goods found in outer space. Typically, property rights do not exist unless sovereignty is also present. But there is historical precedent for property claims to resources even without any country claiming sovereignty over the region where those resources are found. In the 1920s, many countries mined the Spitzbergen Archipelago in the Arctic Sea without alleging sovereignty over the islands.
The Outer Space Treaty was drafted during the Cold War when assertion of sovereignty was a more germane issue that assertion of property rights for the purpose of economic exploitation. Some commentators have argued that the Outer Space Treaty cannot be interpreted to preclude assertion of exclusive economic rights in space.
While the Outer Space Treaty is sufficiently vague so that it can be interpreted to allow exclusive economic rights over particular areas of space, the Moon Treaty of 1979 clearly prohibits private ownership of areas of the moon: “Neither the surfaces nor subsurfaces of the moon, nor any part thereof or natural resources in place, shall become property of any State, international, intergovernmental or non-governmental organization, national organization, or non-governmental entity, or natural person.” Article 5 of the treaty contemplates an international regime to govern exploitation of the Moon’s resources. While the treaty’s language is strong, the treaty is of limited force because only eight countries (Australia, Austria, Chile, Mexico, the Netherlands, Pakistan, the Philippines, and Uruguay) have signed it, and none of them have a significant space program or the resources to develop such a program.
C. Sharing Economic Wealth Flowing From Exploration
Do wealthy nations who explore space have an obligation to share the fruits of those explorations with all mankind, and in particular, developing countries that cannot afford the costs of exploring space without help from the developed countries? Article I(1) of the Outer Space Treaty states that use of outer space shall be carried out … for the benefit and in the interests of all countries.” But wealthy countries argue that an obligation to share the fruits of exploration, the most obvious examples being mineral and energy wealth, destroys their incentive to invest in space exploration.
D. Analogous Areas of International Law on Earth
1. Law of the Sea
United Nations discussions relating to law of the sea have developed the notion that the seabed and ocean floor are a "common heritage of mankind." The common heritage principle consisted of five essential elements:
(1) the area under consideration cannot be subject to appropriation;
(2) all countries must share in its management;
(3) there must be an active sharing of the benefits reaped from the exploitation of resources;
(4) the area must be dedicated to exclusively peaceful purposes; and
(5) the area must be preserved for future generations.
Some commentators have tried to import the Common Heritage concept from the law of the sea into the law of space.
2. Law Relating to Exploration of Antarctica
In trying to enact a regime to govern lunar mining, some commentators have looked at legal proposals to govern mining in Antarctica. Under the Antarctic Treaty, activities are only governed by Consultative Parties, i.e., parties undertaking substantial scientific research in Antarctica.
Although the regime relating to space exploration has been developing for several decades, there is still no clearly articulated system of legal rights relating to exploration and economic exploitation of outer space. The notable exception to this trend is communication satellites, where organizations such as INTELSAT and INMARSAT have successfully created a reliable legal framework. But no clear comprehensively binding legal regime governs matters as basic as the mining of material from other celestial bodies. The Outer Space Treaty of 1967 states basic principles concerning exploration but fails to clearly delineate a set of property or contract law principles. However, the treaty explicitly prohibits future space exploration and economic exploitation. The Moon Treaty also offers such a prohibition, but is far more limited than the Outer Space Treaty due to the limited number of nations that signed it. Given the lack of a coherent framework, wealthy nations with the resources to explore space and make use of its resources have few legal principles to prevent them from doing so and little obligation to share any discovered resources with the rest of the world.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, U.N. Doc. A/Res/34/68 (1979) (entered into force July 11, 1984) (sometimes referred to as the Outer Space Treaty).
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, S. Treaty Doc. No. 91-1, 96th Cong., 2d Sess., 1155 U.N.T.S. 331, (entered into force Jan. 27, 1980)
Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1976)
Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2391, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972).
Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 (entered into force Dec. 3, 1968).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) (sometimes referred to as the Moon Treaty).
United Nations, especially Committee on the Peaceful Uses of Outer Space (COPUOS)
International Telecommunications Satellite Organization (INTELSAT)
International Maritime Satellite Organization (INMARSAT)
International Court of Justice (potential jurisdiction)
G.A.Res. 1348 (XIII) (1958)
G.A.Res. 1472 (XIV)
G.A.Res. 1721 (XVI) (1961)
Colloquium on the Law of Outer Space
Karl-Heinz Bockstiegel, Legal Implications of Commercial Space Activities, in Proceedings of the Twenty-Fourth Colloquium on the Law of Outer Space(1981).
Carl C. Christol, The Legal Heritage of Mankind: Capturing an Illusive Concept and Applying It to World Needs, in Proceedings of the Eighteenth Colloquium on the Law of Outer Space 42, 48-49 (1975).
Carl Christol, An International Regime, Including Appropriate Procedures, for the Moon: Article 11, Paragraph 5 of the 1979 Moon Treaty, in Proceedings of the Twenty-Third Colloquium on the Law of Outer Space 139, 146
Aldo Armando Cocca, Legal Status of Celestial Bodies and Economic Status of the Celestial Products, in Proceedings of the Seventh Colloquium on the Law of Outer Space 15, 20-21 (1964).
L.F.E. Goldie, Is There a General International Law of Original Ownership? The Possible Relevance of General Doctrines Governing the Possession of Deep Ocean-Bed Resources, in Proceedings of the Nineteenth Colloquium on the Law of Outer Space 287, 289 (1976).
Stephen Gorove, Limitations on the Principle of Freedom of Exploration and Use in the Outer Space Treaty: Benefit and Interests, in Proceedings of the Thirteenth Colloquium on the Law of Outer Space (1970).
See Wolfgang Hampe et al., The Legal Order for the Exploration and Use of Outer Space--Basic Principles, Scope of Application, Trends of Development, in Proceedings of the Thirty-First Colloquium on the Law of Outer Space 98, 103-04 (1988).
Nandasiri Jasentuliyana, Balancing the Conflicting Demands in Legislating Common Property Resources of the Oceans and Space, in Proceedings of the Twenty-Eighth Colloquium on the Law of Outer Space 149, 150 (1985)
E. Kamenetskaya, The Outer Space Treaty and Third States, in Proceedings of the Twenty-First Colloquium on the Law of Outer Space 222, 223 (1978).
Marco G. Markoff, Space Resources and the Scope of the Prohibition in Article II of the 1967 Treaty, in Proceedings of the Thirteenth Colloquium on the Law of Outer Space 81 (1970).
Marco G. Markov, Implementing the Contractual Obligation of art. I,
Para. 1 of the Outer Space Treaty 1967, in Proceedings of the Seventeenth Colloquium on the Law of Outer Space 136, 137 (1974).
Martin Menter, Commercial Space Activities Under the Moon Treaty, in Proceedings of the Twenty-Third Colloquium on the Law of Outer Space 35 (1980).
Welf H. Prince of Hanover, Comments on "Draft Resolution of the International Institute of Space Law Concerning the Legal Status of Celestial Bodies," in Proceedings of the Seventh Colloquium on the Law of Outer Space 356, 357 (1964).
Zhu Qiwu, Some Reflections on the Most Important Principle of Outer Space Law: To the Common Interests of All Mankind, in Proceedings of the Thirty-Second Colloquium on the Law of Outer Space 25, 30 (1989).
Grier C. Raclin, International Cooperation in Commercial Activities in Outer Space: Is it Necessary, Desirable, or Feasible?, in Proceeding of the Thirtieth Colloquium on the Law of Outer Space 234, 240-41 (1987).
Stanley B. Rosenfield, "Use" in Economic Development of Outer Space, in
Proceedings of the Twenty-Fourth colloquium on the Law of Outer Space 73, 74 (1981).
Silvia M. Williams, The Principle of Non-Appropriation Concerning Resources of the Moon and Celestial Bodies, in Proceedings of the Thirteenth Colloquium on the Law of Outer Space 157, 158 (1970).
Books and Book Chapters
Maurice N. Andem, International Legal Problems in the peaceful Exploration and Use of Outer Space (1992).
Carl Christol, The Modern International Law of Outer Space (1982).
Marco G. Marcoff, Traite de droit international public de l'espace (1973).
Nicolas Mateesco Matte, Aerospace: Telecommunications Satellites (1982).
Nicolas Mateesco Matte, Space Policy and Programmes Today and Tomorrow: the Vanishing Duopole (1980).
Space Law: Views of the Future (Tanya L. Zwaan ed., 1988).
Lunar Bases and Space Activities of the 21st Century (W. W. Mendell ed., 1985)
Law Review Articles
Aemro Araya, Recent Activities of Intelsat Benefiting the Developing Countries, 15 J. Space L. 64, 66 (1987).
Adrian Bueckling, The Strategy of Semantics and the "Mankind Provisions" of the Space Treaty, 7 J. Space L. 15, 20 (1979)
Carl Christol, International Space Law and the Less Developed Countries, in Proceedings of the Nineteenth Colloquium on the Law of Outer Space 243, 244 (1976).
Gennady M. Danilenko, Outer Space and the Multilateral Treaty- Making Process, 4 High Techn.L.J. 217, 226 (1989).
Gennady M. Danilenko, the Concept of the "Common Heritage of Mankind" in International Law, 13 Annals Air & Space L. 247, 259 (1988).
Mounira Hassani-Ould Derwich, Le droit de l'espace: un droit a refaire?, 26 Revue Algerienne des Sciences Juridiques 677, 683 (1988).
Efficiency, Equity and the Optimum Utilization of Outer Space as a Common Resource, 5 Annals Air & Space L. 589, 607 (1980).
Ernst Fasan, The Meaning of the Term Mankind in Space Legal Language, 2 J. Space L. 125 (1974)
Edward R. Finch, Jr. & Amanda L. Moore, The 1979 Moon Treaty Encourages Space Development, in Proceedings of the Twenty-Third Colloquium on the Law of Outer Space 13, 16 (1980).
Eilene Galloway, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 5 Annals Air & Space L. 481, 507 (1980).
Nicolas Mateesco Matte, The Common Heritage of Mankind and Outer Space: Toward a New International Order for Survival, 12 Annals Air & Space L. 313, 318 (1987).
Note, Edwin W. Paxson, Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development, Mich J. Int’l L., Spring 1993
K. Narayana Rao, Common Heritage of Mankind and the Moon Treaty, 21 Indian J. Int'l L. 275 (1981).
Neeru Sehgal, The Concept of Common Heritage of Mankind under the Moon Treaty, 1979, 26 Indian J. Int'l L. 106 (1986).
David Tan, Toward a New Regime for the Protection of Space for All Mankind, 25 Yale J. Int’l L. 145 (Winter 2000).
Vladen S. Vereshchetin & Gennady M. Danilenko, Custom As a Source of International Law of Outer Space, 13 J. Space L. 22, 25 (1985).
Kevin B. Walsh, Controversial Issues Under Article XI of the Moon Treaty, 6 Annals Air & Space L. 489, 496 (1981).
See H. A. Wassenbergh, Speculations of the Law Governing Space Resources, 5 Annals Air & Space L. 611, 614 (1980).
Legal Research : Space Law
General Policy Concerns of Space Law
The current National and International agreements, memorandums, treaties and resolutions are based on the policy of cooperative space research and exploration. At present, the goal of space exploration is not a race to claim resources, but to further the exploration and scientific research. A major goal is to maximize the total capacity of global space programs.
It is especially clear in the memorandum (ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_russian.html) between NASA and the RSA (Russian Space Agency) regarding the International Space Station that cooperation is the backbone of this particular, and all future space agreements.
The current agreements suggest that satellites and objects placed into orbit are subject to the jurisdiction of the party which launched them, and any international problems are to be resolved by international law and the jurisdiction of the United Nations. The role of the UN is to promote peaceful exploration and cooperation.
Currently, there are no recognized property rights to any real property, natural resources or other benefits derived from space development. However, there are many interesting proposals for developing equitable property rights on the moon, asteroids and other celestial bodies.
Although military satellites are permitted for many purposes, there are a variety of treaties specifically banning the placement of any weapons of mass destruction into space. Aside from the specific weapons of mass destruction, the weaponization of space by other means is a topic of concern for many countries around the world.
I was unable to locate any specifics on any current laws, treaty or even serious proposals regarding interstellar law. There simply seems to be nothing out there at this time, I guess we will have to wait until our technology improves somewhat and interstellar travel is closer to reality.
Major International Space Treaty Agreements
(Full Text of the Treaties: http://www.permanent.com/archimedes/TRiP.htm)
1. The ≥Outer Space Treaty≤ ≠ Treaty on Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies - January 27, 1967
Major Treaty Elements:
o Free access to space and all areas of celestial bodies.
o Space and all celestial bodies are not subject to national appropriation or claims of sovereignty.
o Activities, exploration and use of space and all celestial bodies to be carried out in accordance with international law, including the Charter of the United Nations.
o Prohibits placing weapons of mass destruction in orbit or on any celestial bodies.
o Prohibits establishing military bases or conducting weapons testing on a celestial body.
o All astronauts are considered ≥envoys of mankind≤ while in space and all parties shall provide all possible assistance to them in the case of accident, distress, or emergency landing.
o All parties shall immediately inform all other parties of any phenomena they discover concerning space or the celestial bodies which could be a threat to astronauts.
o The party to the treaty shall have international responsibility for national activities in space, whether carried out by government or non-governmental entities.
o Control and ownership of objects is retained by the launching party and is not affected by their presence in space. Upon return to Earth, any objects found shall be returned to the owning party.
o All exploration and space activities shall be conducted as to avoid contamination of the earth by extraterrestrial matter.
o Parties shall be allowed to observe the space object launches of other parties.
o The nature, conduct, locations and results of space activities shall be reported to the UN Secretary-General and disseminated to all parties.
o Any party may propose amendments to this treaty which will be accepted upon a majority vote.
o Any party may withdraw from the treaty by providing one year notice.
2. The ≥Moon Treaty≤ ≠ Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies ≠ December 5, 1979
Major Treaty Elements:
o All references to the moon include orbits around the moon and trajectories to reach the moon.
o Activities, exploration and use of the moon and all celestial bodies to be carried out in accordance with international law, including the Charter of the united Nations.
o Use of the moon limited to exclusively peaceful purposes.
o No weapons of mass destruction shall be placed on the moon or in orbit of the moon.
o The establishment of military installations on the moon is prohibited.
o State Parties shall inform the UN Secretary-General, the public, and the international scientific community of their activities involving exploration and use of the moon. In the case of missions lasting longer than sixty days, reports shall be made every thirty days.
o The UN Secretary-General, the public and the international scientific community shall be promptly informed of any phenomena discovered in outer space or on the moon, which could endanger human life or human health as well as any indication of organic life.
o Parties have the right to collect and remove samples from the moon in the quantities appropriate for their research.
o Measures shall be taken to prevent the disruption of the moon environment through contamination.
o The location of any radioactive material placed on the moon must be reported to the UN Secretary-General in advance.
o Allows free exploration of the surface and below the surface of the entire moon.
o Manned or unmanned scientific research facilities may be established on the moon.
o Shelter must be offered in any stations, installations, vehicles or other facilities to persons in distress on the moon.
o The surface, subsurface or any part of the natural resources of the moon can not become the property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.
o The placement of facilities on the surface of the moon does not establish ownership over that area of the surface or subsurface of the moon.
o Any benefit derived from the natural resources of the moon shall be equitably shared by all State Parties.
o If a human life is in threat, State Parties may use the facilities, installations vehicles or supplies of other State Parties present on the moon.
o The party to the treaty shall have international responsibility for national activities on the moon, whether carried out by government or non-governmental entities.
o Any party may propose amendments to this treaty which will be accepted upon a majority vote.
o Any party may withdraw from the treaty by providing one year notice.
Current U.S. Law and Proposals concerning Space
(Library of Space Law and Policy - http://www.permanent.com/archimedes/LawLibrary.html)
1. Specific U.S. law relating to some of the topics mentioned in class.
Patents ≠ 35 USC 105 - http://www4.law.cornell.edu/uscode/35/105.html
Summary: Any invention or component made, used or sold in outer space on a space object under the jurisdiction or control of the United States shall be considered to have been made, used or sold in the United States.
Commercial Launches of Space Objects ≠ Commercial Space Act of 1998 - http://www.permanent.com/archimedes/hr1702.htm.
Summary: Establishes the policy and procedures for allowing private commercial launches of material into space.
2. Interesting proposals concerning topics covered in class.
Traffic Systems in Near Earth Space
Summary: Specifically addresses the short term need for clear definitions of the ownership and control of specific orbits around the earth. The proposal includes discussion of the width of longitudal ≥lanes≤ for satellites, pollution standards (propellant exhaust and electromagnetic radiation), orbital passing rights and the procedures for removing satellites from orbit.
Weapons in Space
Future Security in Space
Summary: Theorizes about the next 5-10 years of space, specifically focusing on the role of orbital weapons as we transition away from the present ≥near-anarchy≤ of space law.
Lunar Real Estate
The Archimedes Institute - www.permanent.com/archimedes
Summary: Maintains a free registry of all ownership of space property, especially parcels of land on the moon.
Summary: Discusses some of the history and legal issues of various companies selling parcels of land on the moon, mars, and other planets and moons in the solar system. I thought it was funny that one company has claimed ownership to ≥all planets in the Milky Way galaxy.≤
The Colony Fund
Summary: Briefly examines the theorized unenforceability of the major international treaties and encourages would-be investors to get a piece of space now befor it is all gone.
Jurisdiction for Real Property in Outer Space
Invest in Space Now Act of 2001 - http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:h2177ih.txt.pdf
Summary: A proposal to allow commercial and private companies access to government funds or grants for the development of a commercial US space transportation system.
Space Tourism Promotion Act of 2001 - http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:h2443ih.txt.pdf
Summary: Proposes the establishment of Federal loans, tax credits, regulatory structure and research to enable the private sector to develop operational passenger-carrying space systems and orbital habitats. The Proposal would expand the FAAĻs (Federal Aviation Administration) Office of Commercial Space Transportation to become the primary regulatory body.
Mining Economics and Risk Control in the Development of Near-Earth Asteroids
Space Navigation Law
Other Information about the Development of Space Law
Information on International Conventions for space proposals
Course outline for an Australian Space Law class.
High level ≥Current Issues≤ outline
German analysis of International Space Law
Space Law Cases
Smith v. United States, 507 U.S. 197 (1993)
Summary: Smith brought a wrongful death claim against the US after her husband fell into a deep hole and was killed while near his research station in Antarctica. The Supreme Court held the FTCA (Federal Torts Claim Act) does not apply to Antarctica because the lack of any sovereign Antarctic government excludes it from meeting the requirement as a ≥foreign country≤ under the FTCA. It is noted in the case and in the dissent that the situation in Antarctica parallels some of the outer space cases we will begin to see in the future.
United States v. One Lucite Ball Containing Lunar Material, 2003 U.S. Dist Lexis 467 (2003)
Summary: In 1973 a plaque was presented to Honduras by President Nixon which contained a moon rock retrieved by astronauts during one of the Apollo moon landings. In 1994, the moon rock was stolen from the Honduran President and was later sold to an American by a retired Honduran colonel. Undercover US agents were able to set up a sting and recover the moon rock. Under the Honduran Civil code, the ≥innocent owner≤ defense was not available and the moon rock and the plaque were forfeited to the United States.
This case has little to do with actual space law, but was one of the few cases I was able to find that dealt with actual space (lunar) material. The case was interesting to me because it is so recent (filed March 24, 2003) and because of the million dollar value placed on the moon rock.
The recent Shuttle crash will may lead to several cases prosecuting people for tampering, stealing or interfering with the collection of the shuttle debris. It will be interesting to see if any new aspects of space law are developed as a result.
I was unable to find any cases addressing the legality or any disputes involving the sale of parcels of moon land (or other celestial bodies).
 Edwin W. Paxson, Sharing the Benefits of Outer Space Exploration: Space law and Economic Development, 14 Mich J. Int’l L. 487, Spring 1993.
 Id. at 495.
 Id. at 494.
 Id. at 502.
 See Antarctic Treaty, opened for signature Dec. 1, 1959, 12 U.S.T 794, 402 U.N.T.S. 71 (entered into force Jun 23, 1961).