Abstract
Long considered only from a theoretical perspective, a spate of initiatives revolving around the exploration and utilization of the Moon and asteroids, both public and private, have recently reintroduced the relatively long-standing United Nations (UN) treaties to the pressing issue of natural resource appropriation. In direct response to the budding development of an American space mining industry, the United States adopted the Commercial Space Launch Competitiveness Act in November 2015. This Act was the first legal instrument to explicitly grant property rights to private enterprises over resources extracted from asteroids and other celestial bodies. Though the aim of domestic initiatives such as the 2015 US Act is to increase legal certainty for companies and their investors, this goal can only be fully achieved by an elucidation of the fundamental principles of international space law that they wish to implement. This article wishes to contribute to this daunting challenge by offering a possible interpretation of the existing UN space treaties in light of recent developments in space mining regulation.
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Notes
- 1.
The most high-profile of these initiatives are the Planetary Resources (www.planetaryresources.com), Deep Space industries (deepspaceindustries.com) and Bigelow Aerospace (http://bigelowaerospace.com). The volatility of the budding space mining market means that it is uncertain which of these companies will be the first to embark on a space mining mission, and when that will be. Recent shake-ups in the industry have already led to internal reorganization of Planetary Resources and an indefinite postponement of their first planned mission.
- 2.
The frontrunners in the race to space resources listed in the above footnote are private companies with headquarters in the United States: Planetary Resources (Washington), Deep Space Industries (California) and Bigelow Aerospace (Nevada). However, some of these companies have branched out into other countries, notably Luxembourg and Mexico, while new competitors are increasingly setting up shop in other jurisdictions as well, such as iSpace in Japan.
- 3.
H.R.2262—114th Congress (2015–2016), introduced by Rep. Kevin McCarthy.
- 4.
Sec. 51,303. Asteroid resource and space resource rights.
- 5.
Remarks by Prof. Joanne Gabrynowicz: see J. Foust, ‘Hearing Raises Questions About Asteroid Mining Bill’, SpaceNews, 10 September 2014, available at http://spacenews.com/41825hearing-raises-questions-about-asteroid-mining-bill/, retrieved on 9 January 2018. See also M. Listner, ‘Asteroid Resource Rights Will Require White House Support’, SpaceNews, 22 September 2014, available at http://spacenews.com/41954letter-asteroid-resource-rights-will-require-white-house-support/, retrieved on 9 January 2018.
- 6.
UNCOPUOS, Report of the Legal Subcommittee on its 56th session, held in Vienna from 27 March to 7 April 2017, UN Doc. A/AC.105/1122 of 18 April 2017, para. 236.
- 7.
See Sec. 51302 (a) and (b) and Sec. 51303 of the Act. The same specific language referring to the international obligations of the United States does not figure in the other, more expansive, titles of the Commercial Space Launch Competitiveness Act.
- 8.
Sec. 403. Disclaimer of extraterritorial sovereignty.
- 9.
C.M. Davis, ‘Sense of resolutions and provisions’, 16 May 2016, Congressional Research Service 7-5700, available at https://fas.org/sgp/crs/misc/98-825.pdf, retrieved on 9 January 2018.
- 10.
Ibid.
- 11.
Such reference was included in a previous version of the bill, which provided that ‘[s]pace resources are capable of being appropriated under international law’. However, the reference to international law was dropped in a rather contentious move after the Luxembourg Council of State remarked that it would be premature and not conducive to legal certainty to assume that the matter of space resource appropriation had been settled under international law. See Ph. De Man, ‘Luxembourg law on space resources rests on contentious relationship with international law’, October 2017, The Space Review, available at http://thespacereview.com/article/3355/1, retrieved on 9 January 2018.
- 12.
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, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967) [Outer Space Treaty].
- 13.
Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363
UNTS 3 (entered into force 11 July 1984) [Moon Agreement].
- 14.
The treaties were negotiated and adopted at a time when the space age had already become a reality through the launching and orbiting of a number of satellites. Indeed, none of the provisions in the UN space treaties can be construed as excluding the freedom to use orbits and frequencies around Earth. Rather, by establishing an enabling regime of spacefaring activities reliant on orbital movement and radiofrequency communications, the treaties accept and presume the necessity of exploitation of these resources. This is confirmed by the fact that a number of provisions in the UN space treaties explicitly rely on orbital criteria for determining their scope of application (e.g. Art. II of the Convention on Registration of Objects Launched into Outer Space, 6 June 1975, 28 UST 695, 1023 UNTS 15 (entered into force 15 September 1976) [Registration Convention]), and the fact that the lowest possible orbit is often posited as a working criterion for delimiting the airspace boundary and defining the geographical scope of application of space law.
- 15.
For an in-depth discussion of these proposals and their shortcomings, see Ph. De Man, Exclusive Use in an Inclusive Environment: The Meaning of the Non-Appropriation Principle for Space Resource Exploitation, Berlin, Springer, 2016, Chapter 3.
- 16.
These are 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, 672 UNTS 119, 19 UST 7570, TIAS No 6599, 7 ILM 151 (entered into force 3 December 1968) [Rescue Agreement]; Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24 UST 2389, 10 ILM 965 (1971) (entered into force 1 September 1972) [Liability Convention]; Registration Convention; and Moon Agreement.
- 17.
UNOOSA, United Nations treaties and principles on outer space, UN Doc. ST/SPACE/11/Rev.2 of 2008, p. vi. The most recent collections of the UN space treaties and resolutions omit the introductory part that contains this characterization: see UNOOSA, United Nations Treaties and Principles on Outer Space, UN Doc. ST/SPACE/61/Rev.1, s.d.
- 18.
J.I. Gabrynowicz, ‘Space Law: Its Cold War Origins and Challenges in the Era of Globalization’, 37 Suffolk U. L. Rev. 2004, p. 1042: ‘[t]ogether, the treaties form an interrelated legal framework that governs international space activities, complete with laws and dispute resolution mechanisms’.
- 19.
PP 7 MA.
- 20.
UNGA, Preparation of an international convention on principles governing the use by states of artificial Earth satellites for direct television broadcasting: report of the Special Political Committee, UN Doc. A/34/664 of 22 November 1979, cited in K.U. Pritzsche, Natürliche Ressourcen im Weltraum – das Recht ihrer wirtschaftlichen Nutzung, Frankfurt am Main: Lang, 1989, p. 95. Christol confirms that ‘[t]he Moon Treaty [sic], like all of the other space environment treaties following the 1967 Principles Treaty, fortifies and extends certain critical provisions of the latter’: C.Q. Christol, ‘The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’, 14 Int’l Law. 1980, p. 480. See further E. Brooks, ‘Dangers from Asteroids and Comets: Relevance of International Law and the Space Treaties’, 40 Proc. Coll. L. Outer Space 1997, p. 255.
- 21.
G. Schwarzenberger, ‘Myths and Realities of Treaty Interpretation: Articles 27–29 of the Vienna Draft Convention on the Law of Treaties’, 9 Va. J. Int’l. L. 1968, p. 7.
- 22.
U. Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties, Dordrecht: Springer, 2007, p. 164–165
- 23.
Ibid., p. 167.
- 24.
While the Outer Space Treaty has been ratified by 107 States, the Moon Agreement only has 18 ratifications (as of April 2018). For an up-to-date status of the UN space treaties, see http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html, retrieved on 5 April 2018.
- 25.
G. Distefano, ‘La pratique subséquente des états parties à un traité’, 40 Ann. Fr. Dr. Int’l 1994, p. 46; J.-M. Sorel and V. Boré Eveno, ‘Article 31 1969 Vienna Convention’, in O. Corten and P. Klein (eds.), Y. Le Bouthillier, ‘Article 32 1969 Vienna Convention’, in O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary, Oxford: Oxford University Press, 2011, p. 826.
- 26.
I. Brownlie, Principles of Public International Law, Oxford: Oxford University Press, 2008, p. 6. The latest version of the principles, no longer authored by Brownlie himself, changes the long-standing terminology of the cited phrase to ‘an extensive pattern of treaties in the same terms’, without further explanation as to its origins or justification: J.R. Crawford and I. Brownlie, Brownlie’s Principles of Public International Law, Oxford: Oxford University Press, 2012, p. 24.
- 27.
J.-M. Sorel and V. Boré Eveno, supra footnote 18, p. 826.
- 28.
Ibid.
- 29.
Ibid.
- 30.
I. Sinclair, The Vienna Convention on the Law of Treaties, Manchester: Manchester University Press, p. 138–140.
- 31.
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.
- 32.
Ibid, para. 53.
- 33.
ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, I.C.J. Reports 1999, p. 1060.
- 34.
I. Sinclair, supra footnote 23, p. 140. An evolutive interpretation of treaties is also advocated in, for example, ICJ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), p. 16, para. 53; ICJ, Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 3, para. 80.
- 35.
See in particular the scathing assessment in S.E. Doyle, ‘Using extraterrestrial resources under the Moon Agreement of 1979’, 26 J. Space L. 1998, p. 111–128, reiterated in S.E. Doyle, ‘Issues of sovereignty and private property’, in M. Benkö and W. Kroll (eds.), Luft- und Weltraumrecht im 21. Jahrhundert: liber amicorum Karl-Heinz Böckstiegel, Cologne: Carl Heymanns, 2001, p. 313–325. See also the critical assessment of the various draft treaties for a Moon Agreement in E. Galloway, ‘The future of international space cooperation in treatymaking’, 14 Proc. Coll. L. Outer Space 1971, p. 244.
- 36.
UNCOPUOS LSC, Joint statement on the benefits of adherence to the Agreement governing the activities of States on the Moon and other celestial bodies by States Parties to the Agreement, UN Doc. A/AC.105/C.2/L.272 of 3 April 2008, p. 3–4.
- 37.
Art. 31 (3), sub a VCLT. See supra.
- 38.
C.Q. Christol, ‘The common heritage of mankind provision in the 1979 Agreement governing the activities of States on the Moon and other celestial bodies’, 14 Int’l Law. 1980, p. 429 and 480; H.L. Van Traa-Engelman, ‘Clearness Regarding Property Rights on the Moon and Other Celestial Bodies’, 39Proc. Coll. L. Outer Space 1996, p. 42; V. Kopal, ‘United Nations and the Progressive Development of International Space Law’, 1997 Finnish Yb. Int’l L. 1997, p. 18; R.B. Bilder, ‘A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options’, 33 Fordham Int’l L.J. 2009, p. 269; and R.J. Lee, Law and Regulation of Commercial Mining of Minerals in Outer Space, Berlin: Springer, 2012, p. 186
- 39.
See, for example, H.G. Darwin, ‘The Outer Space Treaty’, 42 Brit. Yb. Int’l L. 1967, p. 282–283: ‘many types of ‘use’ or ‘exploitation’ […] are inconceivable without appropriation of some degree at least of the materials taken. Thus, mineral deposits can hardly be explored [sic!] without appropriation’. See further E. asan, ‘Law and Peace for the Celestial Bodies’, 5 Proc. Coll. L. Outer Space 1962, p. 8; E. Husby, ‘Sovereignty and Property Rights in Outer Space’, 3 J. Int’l L. & Prac. 1994, p. 365; T. Gangale, The Development of Outer Space: Sovereignty and Property Rights in International Space Law, Santa Barbara: Praeger, 2009, p. 42; and S.M. Williams, ‘The Growing Momentum of Satellite Broadcasting and the Geostationary Orbit’, 26 Proc. Coll. L. Outer Space 1983, p. 47.
- 40.
For example, the French version of the provision extends the application of the non-appropriation provision to the natural resources that ‘can be found on’ celestial bodies (‘les ressources naturelles qui s’y trouvent’).
- 41.
L. Viikari, From Manganese Nodules to Lunar Regolith: A Comparative Legal Study of the Utilization of Natural Resources in the Deep Seabed and Outer Space, Rovaniemi: University of Lapland, 2002, p. 111. See also K.N. Rao, ‘Editorial comment: common heritage of mankind and the Moon Treaty’, 21 Indian J. Int’l L. 1981, p. 277.
- 42.
Ibid., footnote 303 (emphasis added).
- 43.
Art. 6 MA on samples notoriously stops short of conferring property rights on the collecting State: see S. Hobe and F. Tronchetti, ‘[Moon Agreement:] Article 6 (scientific investigations/samples/minerals)’, in S. Hobe, B. Schmidt-Tedd and K.-U. Schrogl (eds.), Cologne Commentary on Space Law. Volume II: Rescue Agreement, Liability Convention, Registration Convention, Moon Agreement, Cologne: Carl Heymanns, 2013, no. 92.
- 44.
Art. 32 VCLT.
- 45.
See the list of Member States on the official website of the ITU at https://www.itu.int/online/mm/scripts/gensel8, retrieved on 5 April 2018.
- 46.
Art. 1 (2) MA provides that ‘[f]or the purposes of this Agreement reference to the Moon shall include orbits around or other trajectories to or around it’.
- 47.
[Note], ‘ITU tries to solve new problems without interfering with national sovereignty’, Satellite Wk. 29 May 1995.
- 48.
Director Radiocommunication Bureau, Report on Resolution 18 of the Plenipotentiary Conference Kyoto, 1995, p. 3. ‘Paper satellites’ are defined as ‘satellite networks in coordination or recorded in the Master Register that are not in operation and will never be brought into use’: see D.M. Leive, Rapporteur Group SC-4 report to the Special committee on regulatory/procedural matters devoted to Resolution 18 (Kyoto, 1994), ITU Doc. SC-RG4/54 of 25 November 1996, p. 3 and 11.
- 49.
J.C. Thompson, ‘Space for Rent: The International Telecommunications Union, Space law, and Orbit/Spectrum Leasing’, 62 J. Air L. & Com. 1996, p. 279–331; S. Ospina, ‘Regulation of space resources’, in M. Benkö and K.-U. Schrogl (eds.), Space Law: Current Problems and Perspectives for Future Regulation, Utrecht: Eleven International Publishing, 2005, p. 263.
- 50.
For lack of space, the present article does not cover the various plans adopted by the ITU that deviate from the general registration procedure. Suffice it to say that they do not fundamentally alter the assessment of the procedure in Arts. 9 and 11 ITU RR or their link with the principles in Arts. I and II OST. For more on the ITU plans and their relevance for the non-appropriation principle, see Ph. De Man, ‘Rights over areas vs resources in outer space: what’s the use of orbital slots?’, 38 J. Space L. 2012, p. 39–150.
- 51.
Nos. 11.44 through 11.49 ITU RR.
- 52.
See, for example, Resolution 49 (Rev. WRC-12) on administrative due diligence applicable to some satellite radiocommunication services, Resolution 80 (Rev. WRC-07) on due diligence in applying the principles embodied in the Constitution and Resolution 81 (WRC-2000) on the evaluation of the administrative due diligence procedure for satellite networks.
- 53.
Resolution 2 (Rev. WRC-03) on equitable use, by all countries, with equal rights, of the geostationary satellite and other satellite orbits and of frequency bands for space radiocommunication services and Resolution 4 (Rev. WRC-03) relating to the period of validity of frequency assignments to space stations using the geostationary satellite and other satellite orbits.
- 54.
In particular, J.E. Penner, The Idea of Property in Law, Oxford: Oxford University Press, 1997
- 55.
L.S. Underkuffler, The Idea of Property: Its Meaning and Power, Oxford: Oxford University Press, 2003, p. 32.
- 56.
J.E. Penner, supra footnote 45, p. 70.
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De Man, P. (2019). Interpreting the UN Space Treaties as the Basis for a Sustainable Regime of Space Resource Exploitation. In: Kyriakopoulos, G.D., Manoli, M. (eds) The Space Treaties at Crossroads. Springer, Cham. https://doi.org/10.1007/978-3-030-01479-7_2
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