Abstract
It is usually assumed that national law, related to space activities or any other subject, will be consistent with international treaties. This is the case since once a treaty is formally adopted, it is considered to be the highest form of national law. There can be cases where there is ambiguity in the phrasing of international law and treaties as well as in national law where it is not clear what the requirements and scopes actually are. Many countries around the world have now developed national space laws, and there has not been a formal determination if those national space laws might contravene the Outer Space Treaty or any of the other international space agreements. In particular, the U. S. Space Act of 2015 that is discussed in this chapter raises new questions about how space mining might be conducted, who might profit from this activity, and how possible conflicts between national space law and international space law might be resolved. In addition, this chapter discusses national space laws of the United Kingdom, the Russian Federation, Australia, Canada and India, primarily to assess their adequacy to govern natural resource explorations and exploitations in space.
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Notes
- 1.
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 [Outer Space Treaty], Article VI.
- 2.
See Paul Stephen Dempsey, “National Legislation Governing Commercial Space Activities,” Journal of Space Safety Engineering, Vol 1, No 2, December 2014, 44-60.
- 3.
See for example the website of the Space Settlement Institute, a non-profit organization established to help promote the human colonization and settlement of outer space http://www.space-settlement-institute.org/. The Space Settlement Institute believes that private industry, not government, must assume the lead in space settlement efforts. Accordingly, its mission includes:
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Identification of financial and other incentives to motivate private industry to fulfill such a role;
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Removal of regulatory, legal, and psychological barriers to private sector efforts in space.
The Institute is of the view that a “Lunar Land Claims Recognition Law” that would recognize the right of private lunar settlements to claim and resell the land around their lunar bases is the necessary first step to incentivize permanent human habitation on the Moon. The Institute therefore intends to persuade the US Congress to enact a Space Settlement Prize Act, a draft of which appears on the Institute’s website. See also: Alan Wasser & Douglas Jobes “Space Settlements, Property Rights and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?” (2008) 73:1 Journal of Air Law and Commerce 37.
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- 4.
See for example: Rand Simberg, Homesteading the Final Frontier – A Practical Proposal for Securing Property Rights in Space (Competitive Enterprises Institute, Issue Analysis 2012 No. 2, April 2012) online: http://cei.org/sites/default/files/Rand%20Simberg%20-%20Homesteading%20the%20Final%20Frontier.pdf.
- 5.
See “Law Journal Article Exposes A Growing Scam: People Getting Rich Selling Deeds To Lunar Real Estate” 2 June 2008, online PR Web, http://www.prweb.com/releases/2008/06/prweb982824.htm.
- 6.
“What’s It All About?” online: Lunar Embassy, http://lunarembassy.com/about.
- 7.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December 1979, 1363 UNTS 3. For the text of the Agreement, see Appendix to this book.
- 8.
Communications Act of 1934, as amended and updated by the Telecommunications Act of 1996, Pub L 104-104, 110 Stat 56 (1996).
- 9.
National and Commercial Space Programs, 51 USC (Pub. L. 111–314, § 3, 18 December 2010, 124 Stat 3328).
- 10.
51 USC Ch 509.
- 11.
Irene Klotz, “The FAA: regulating business on the moon,” 3 February, 2015, online: http://mobile.reuters.com/article/idUSKBN0L715F20150203?irpc=932.
- 12.
Ibid.
- 13.
For a copy of the Recommendations, see NASA website: http://www.nasa.gov/directorates/heo/library/reports/lunar-artifacts.html.
- 14.
Ibid, 5.
- 15.
Ibid.
- 16.
In this regard, NASA specifically identifies the following principles contained in the Outer Space Treaty as being relevant:
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That outer space shall be free for exploration and use by all states;
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That there should be freedom of scientific investigation in outer space;
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That outer space is not subject to national appropriation;
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That parties to the treaty retain jurisdiction and control over objects launched into outer space that are listed on their registries, while they are in outer space and that ownership of objects launched into outer space is not affected by their presence in outer space or by their return to Earth;
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That nations be guided by the principle of cooperation and mutual assistance in lunar exploration and use, with due regard to the corresponding interests of other parties to the treaty; and
That international consultations must take place prior to the commencement of an activity that any party has reason to believe would cause potentially harmful interference with activities of other parties.
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- 17.
HR 5063. The text of this Bill is available at: Government Publishing Office http://www.gpo.gov/fdsys/pkg/BILLS-113hr5063ih/pdf/BILLS-113hr5063ih.pdf. For an analysis of the ASTEROIDS Act, see Charles Stotler, “The ASTEROIDS Act and hearing: some observations on international obligations”, The Space Review (22 September 2014), online: The Space Review, http://www.thespacereview.com/article/2604/1.
- 18.
“Bipartisan Legislation Promotes Commercial Space Ventures”, U.S. Congressman Billy Posey, online: http://posey.house.gov/news/documentprint.aspx?DocumentID=387391. It should be noted that while several space industry representatives and some politicians have been highly optimistic about the significantly profitable space mining, there are some experts who are not so sure about the economic viability of such activities in the near future. Mark Sykes, the Director of the Planetary Science Institute and a co-investigator on the NASA Dawn mission to Vesta and Ceres, has been reported expressing his caution that, “The development of an NEO ISRU infrastructure is beyond the scope of private enterprise……..All this basic science and engineering is something beyond the scope of reasonable investment by a commercial entity, because there would be no expectation of return in investment on a reasonable timescales. I expect it would take a couple of decades to get to the point when one could answer the question of whether, with some level infrastructure in place, the marginal cost of processing and returning water from an asteroid would be cheaper than bringing it up from the surface of the Earth.” See Mark Strauss, “Congressional Hearing Slams Feasibility Of Commercial Asteroid Mining,” 11 September 2014, online at: http://io9.gizmodo.com/congressional-hearing-slams-feasibility-of-commercial-a-1633510688.
- 19.
Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 (US), 51 USC Title IV, Pub L 114-90 (Bill HR 2262).
- 20.
Pub L 114-90 Title IV § 402.
- 21.
Pub L 114-90 Title IV § 402.
- 22.
Pub L 114-90 Title IV§ 403.
- 23.
Pub L 114-90 Title IV § 401.
- 24.
Outer Space Act (UK) 1986 c. 38.
- 25.
Ibid. section 5 (2) (e).
- 26.
Communications Act (UK) 2003 c. 21.
- 27.
Outer Space Act (UK), section 1 which provides as follows:
This Act applies to the following activities whether carried out in the United Kingdom or elsewhere:
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(a)
launching or procuring the launch of a space object;
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(b)
operating a space object;
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(c)
any activity in outer space.
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(a)
- 28.
For details, see Sergey P. Malkov and Catherine Doldirina, “Regulation of Space Activities in the Russian Federation,” in Ram S Jakhu, ed, National Regulation of Space Activities (Heidelberg: Springer, 2010), 315 et seq.
- 29.
Law on Space Activities (Russian Federation) August 20, 1993 as subsequently amended (Decree No. 5663-1 of the Russian House of Soviets). For an unofficial English translation of this statute, see: UN Office of Outer Space Affairs website: http://www.oosa.unvienna.org/oosa/en/SpaceLaw/national/russian_federation/decree_5663-1_E.html.
- 30.
Statute on Licensing Space Operations (Russian Federation) February 2, 1996 (Decree No. 104 of the Russian House of Soviets). Unofficial English translation is available online on UN Office of Outer Space Affairs website: http://www.oosa.unvienna.org/oosa/en/SpaceLaw/national/russian_federation/decree_104_1996E.html.
- 31.
Space Activities Act of 1998 (Cth.) Act No. 123 of 1998 (as subsequently amended).
- 32.
Space Activities Regulations (Cth.) SR 2001 No. 186 (as amended, taking into account amendments up to SR 2004 No. 79).
- 33.
For details, see Ram S. Jakhu, “Regulation of Space Activities in Canada”, in Ram S Jakhu, ed, National Regulation of Space Activities (Heidelberg: Springer, 2010), 81 et seq.
- 34.
Canadian Aviation Regulations, Section 602.43 to 604.45, online: http://laws-lois.justice.gc.ca/eng/regulations/SOR-96-433/FullText.html#s-602.43.
- 35.
Remote Sensing Space Systems Act, S.C. 2005, c. 45. For detailed analysis of the Act, see Ram S. Jakhu, Catherine Doldirina and Yaw Otu Mankata Nyampong, “Review of Canada’s Remote Sensing Space Systems Act of 2005,” Annals Of Air And Space Law (Vol. XXXVII, 2012), 399 et seq.
- 36.
Mike Wall, “India’s First Mars Probe Makes Historic Red Planet Arrival,” September 23, 2014, online: http://www.space.com/27242-india-mars-mission-arrival.html ; India’s Mars Orbiter Mission delivers first Science Results, looks at future Challenges, 11 November 2015, online: http://spaceflight101.com/mom/indias-mars-orbiter-mission-delivers-first-science-results-looks-at-future-challenges/.
- 37.
For details, see Ranjana Kaul and Ram S. Jakhu, “Regulation of Space Activities in Canada”, in Ram S Jakhu, ed, National Regulation of Space Activities (Heidelberg: Springer, 2010), 153 et seq.
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Jakhu, R.S., Pelton, J.N., Nyampong, Y.O.M. (2017). National Space Laws and the Exploitation of Natural Resources from Space. In: Space Mining and Its Regulation . Springer Praxis Books(). Springer, Cham. https://doi.org/10.1007/978-3-319-39246-2_11
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