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.[1] 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 ÒOuter Space TreatyÓ) 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.[2]
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.[3]
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: ÒNeither 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.Ó Article 5 of the treaty contemplates an international regime to govern exploitation of the MoonÕs resources. While the treatyÕs 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 É for the benefit and in the interests of all countries.Ó 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.[4] Under the Antarctic Treaty, activities are only governed by Consultative Parties, i.e., parties undertaking substantial scientific research in Antarctica.[5]
Conclusion
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.
Treaties
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).
Governing Bodies
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)
UN Actions
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. IntÕl 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. IntÕl 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).
Brian Buckley
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
³Outer Space Treaty² 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 ³envoys of mankind² 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 ³Moon Treaty² 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 ³lanes² 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
http://www.inesap.org/bulletin20/bul20art03.htm
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 ³near-anarchy² 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.
http://www.spacefuture.com/archive/lunar_real_estate_buyer_beware.shtml
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 ³all planets in the Milky Way galaxy.²
The Colony Fund
http://www.colonyfund.com/legal.htm
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
http://www.spacefuture.com/archive/real_property_rights_in_outer_space.shtml
Commercial Expansion
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 FAA¹s (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
http://www.spacefuture.com/archive/some_aspects_of_space_navigation_law.shtml
Other Information about
the Development of Space Law
Information on International Conventions for space proposals
http://videlex.com/Space%20Law.htm
Course outline for an Australian Space Law class.
http://www.law.unsw.edu.au/subjhome/laws4090/info.html
High level ³Current Issues² outline
http://www.un.org/events/unispace3/bginfo/issues.htm
German analysis of International Space Law
http://www.auswaertiges-amt.de/www/en/aussenpolitik/vn/weltraumrecht_html
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 ³foreign country² 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 ³innocent owner² 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).
[1] Edwin W. Paxson, Sharing the Benefits of Outer Space
Exploration: Space law and Economic Development, 14 Mich J. IntÕl L. 487, Spring 1993.
[2] Id. at 495.
[3] Id. at 494.
[4] Id. at 502.
[5] 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).