Outer Space as Private Property and Theater of War?

Abstract

This article discusses two contemporary trends strongly related pressing in growing scale the global space political game for the establishment in outer space and celestial bodies of the right to private property and for the installation of weapons in outer space. These trends are not only supported by space powers, but also and in particular by some large private corporations, involved in the high military industry, as well as in the exploitation of space natural resources, mainly precious minerals from the Moon and asteroids. The article tries to demonstrate that so far there is no international legal basis for the recognition of the right to private property in outer space and celestial bodies. Quite the contrary, the Article II of Outer Space Treaty is very clear in rejecting any kind of appropriation in outer space and also in celestial bodies. The author defends an international regime for the exploitation of space natural resources, beneficial for the development of all countries, and criticizes the installation of weapons in Earth orbits which can transform the outer space into theater of war and tease immeasurable dangers for our already so threatened planet and its inhabitants.

This article reflects exclusively the author’s view.

Appendices

Annex I

Statement by the Board of Directors of the International Institute of Space Law (IISL) on Claims to Property Rights Regarding the Moon and Other Celestial Bodies

2004

Claims to own the Moon or parts thereof by private parties have been made for many years, but so far such claims have not been taken very seriously. However, this could change, as “deeds to lunar property” have started to appear, raising the opportunity for individuals to be misled. In addition, the scope of such claims has been extended recently to other celestial bodies. Thus, the Board of Directors of the International Institute of Space Law (IISL) has concluded that there is a need for a statement regarding the current legal situation concerning claims to private property rights to the Moon and other celestial bodies or parts thereof. While this issue is only a small part of a much broader context surrounding private sector activities on the Moon and other celestial bodies, this statement is limited only to the topic of claims to private property rights to the Moon and other celestial bodies or parts thereof.

Article II of the 1967 Outer Space Treaty states 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 occupation, or by any other means.” The object and purpose of this provision was to exclude all territorial claims to outer space, including the Moon and other celestial bodies. As of March 2004, the Outer Space Treaty has been ratified by 98 nations, and signed by an additional 27 countries. [In 2015, there are 103 ratifications and 25 signatures.]

Article VI of the Outer Space Treaty provides that “States bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities”, that is, private parties, and “for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. Article VI further provides that “the activities of nongovernmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

Therefore, according to international law, and pursuant to Article VI, the activities of non-governmental entities (private parties) are national activities.

The prohibition of national appropriation by Article II thus includes appropriation by non-governmental entities (i.e. private entities whether individuals or corporations) since that would be a national activity. The prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim’. Hence, it is not sufficient for sellers of lunar deeds to point to national law, or the silence of national authorities, to justify their ostensible claims. The sellers of such deeds are unable to acquire legal title to their claims. Accordingly, the deeds they sell have no legal value or significance, and convey no recognized rights whatsoever.

According to international law, States party to a treaty are under a duty to implement the terms of that treaty within their national legal systems. Therefore, to comply with their obligations under Articles II and VI of the Outer Space Treaty, States Parties are under a duty to ensure that, in their legal systems, transactions regarding claims to property rights to the Moon and other celestial bodies or parts thereof, have no legal significance or recognized legal effect.

Note: Notwithstanding matters covered in the above Statement, the Board of Directors of the IISL recognizes that other private activities on the Moon and other celestial bodies are permitted. Article VI of the Outer Space Treaty affirms that non-governmental entities, including private individuals, companies, and organizations, have the right to conduct activities in space in accordance with international space law, and subject to the authorization and continuing supervision of the appropriate State Party. The IISL plans to convene a Workshop to explore issues regarding the relationship of government and private sector in space.

Annex II

Statement of the Board of Directors of the International Institute of Space Law (IISL)

22 March 2009

In 2004, the Board of Directors of the IISL, an international non-governmental organization, issued a statement relating to the issue of ‘property rights’ in outer space. The statement can be found on the website of the IISL, at http://www.iislweb.org/publications.html.

In view of recent misleading views and discussions on this subject in the press, the Board considers that it is appropriate to further clarify a number of salient points as follows:

International Law establishes a number of unambiguous principles, according to which the exploration and use of outer space, including the Moon and other celestial bodies, is permitted for the benefit of mankind, but any purported attempt to claim ownership of any part of outer space, including the Moon and other celestial bodies, or authorization of such claims by national legislation, is forbidden as following from the explicit prohibition of appropriation, and consequently is prohibited and unlawful. Since there is no territorial jurisdiction in outer space or on celestial bodies, there can be no private ownership of parts thereof, as this would presuppose the existence of a territorial sovereign competent to confer such titles of ownership.

The current international legal regime is binding both on States and, through the precise wording of Article VI of the Outer Space Treaty of 1967, which has been ratified by 100 (in 2015, 103) countries, including all the space-faring countries, also on non-governmental entities, i.e. individuals, legal persons and private companies. The clear goal of such a regime is to preserve outer space, including the Moon and other celestial bodies, for the exploration and use of all mankind, not only for those States and private enterprises that are capable of doing so at any particular time.

At present, international space legislation does not include detailed provisions with regard to the exploitation of natural resources of outer space, the Moon and other celestial bodies, although it does set down a general framework for the conduct of all space activities, including those of private persons and companies, with respect to such natural resources.

The IISL is of the opinion that a specific legal regime for the exploitation of such resources should be elaborated through the United Nations, on the basis of present international space law, for the purposes of clarity and legal certainty in the near future. The IISL will continue to play an active role in any such discussions as they develop.

Annex III

Position Paper on Space Resources Mining

Adopted by consensus by the Board of Directors on 20 December 2015.

I. The U.S. Commercial Space Launch Competitiveness Act

On 25 November 2015, the President of the United States signed into law the U.S. Commercial Space Launch Competitiveness Act (H.R. 2262).⁴²

1. It consists of four Titles:

• I. Spurring Private Aerospace Competitiveness and Entrepreneurship;

• II. Commercial Remote Sensing;

• III. Office of Space Commerce; and

• IV. Space Resource Exploration and Utilization.

Title IV, which is of interest here, addresses in preliminary way space resource exploitation. It consists of three sections, whereby Section 402 with its amendments contains most of the substantial legal provisions and envisions:

the facilitation of “commercial exploitation for and commercial recovery of space resources by United States citizens”;

discouragement of “government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration”; and

promotion of “the right of United States citizens to engage in commercial explorations for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government”.

The Act determines in § 51,303 that United States citizens engaged in commercial recovery of an asteroid resource or a space resource under this chapter “shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”⁴³

II. The Legal Situation Relating to Space Resource Exploitation Under International Space Law

• 1. In 2004 and 2009, the Board of Directors of the IISL addressed questions regarding the appropriation of the Moon, other celestial bodies and their resources, in two statements to which reference is made. The adoption of the United States law gives rise to the following evaluation of the current legal situation:

  • (a) First, the Outer Space Treaty of 1967 contains the basic legal regulation for outer space and celestial bodies. In its Article II, it 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 occupation, or by any other means.”

  • (b) Second, it is uncontested under international law that any appropriation of “territory” even in outer space (e.g. orbital slots) or on celestial bodies is prohibited, it is less clear whether this Article also prohibits the taking of resources. Article I para. 2 of the Outer Space Treaty specifies the right of the free exploration and use of outer space and celestial bodies, without discrimination of any kind, on the basis of equality and in accordance within international law. Yet, there is no international agreement, whether the right of “free use” includes the right to take and consume non-renewable natural resources, including minerals and water on celestial bodies.

  • (c) Third, according to the Moon Agreement of 1979, concluded twelve years after the Outer Space Treaty and adopted by consensus in the United Nations General Assembly, natural resources cannot become “property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person” (Article 11 para. 3). State Parties to the Moon Agreement agreed to establish an international regime to “govern the exploitation” of mineral resources “as such exploitation is about to become feasible”. This clause, be it interpreted as a moratorium or not, is binding upon the sixteen States that have so far ratified the Moon. Agreement, but not upon the United States. Moreover, Article 11 has not gained the status of a rule of customary international law.

• 2. Therefore, in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty one can conclude that the use of space resources is permitted. Viewed from this perspective, the new United States Act is a possible interpretation of the Outer Space Treaty. Whether and to what extent this interpretation is shared by other States remains to be seen.

• 3. This is independent from the claim of sovereign rights over celestial bodies, which the United States explicitly does not make (Section 403). The purpose of the Act is to entitle its citizens to these resources if “obtained in accordance with applicable law, including the international obligations of the United States”. The Act thus pays respect to the international legal obligations of the United States and applicable law on which the property rights to space resources will continue to depend.

III. Future Perspectives

It is an open question whether this legal situation is satisfactory. Whether the United States’ interpretation of Art. II of the Outer Space Treaty is followed by other states will be central to the future understanding and development of the non-appropriation principle. It can be a starting point for the development of international rules to be evaluated by means of an international dialogue in order to coordinate the free exploration and use of outer space, including resource extraction, for the benefit and in the interests of all countries.