Space law

This article has been taken from the introduction to my 2018 master's dissertation:

Law and property rights in outer space: celestial bodies and natural resources

The dissertation was completed in October 2018 and submitted to The Open University as the final part of my Master of Laws degree. As a piece of legal research it is now considerably out of date. So much has happened in space exploration, and in international politics, that many of the findings of this report, be they ever so tentative, are to some extent invalidated.

The underlying research and historical background are, however, as relevant today as they were in 2017, when I began my research project, fifty years after the implementation of the Outer Space Treaty. The treaty was born in a spirit of optimism. As the world stood on the brink of nuclear war, there were those who strove to promote disarmament and international cooperation. Nowhere was this spirit stronger than in the scientific community.

Joint working by scientist of many nations brought about projects that included the establishment of the International Space Station, soon to be abandoned by all parties. One cannot imagine such a project taking place today given the war-like posturing of many world leaders. Understanding the geopolitical dimension to space is vital to understanding the future of space exploration and exploitation of the vast natural resources available in outer space.

The following narrative may be of interest to the general reader, as well as to those who study or practise international law, space law, or who are interested in space exploration. If you would like to receive a copy of the full dissertation, please contact me, either through relevant social media or directly if you have my contact details. You may also ask your library to make such a request on your behalf. The dissertation includes an extensive bibliography and is referenced throughout.

The following narrative is reproduced, verbatim, from the introduction to:

Law and property rights in outer space, Taylor, R..G., 2018

Introduction

In a book published in 2013, the Chair of the Space Law Committee of the American Bar Association wrote that ‘the issue of property rights in outer space is not particularly relevant to contemporary commercial space companies, largely because the technology to economically mine and use outer space resources does not yet exist.’ (Kleiman, 2013, p137). The year before this book was published, and presumably after it had been researched and written, Planetary Resources Inc. announced plans to mine near-Earth asteroids for natural resources ranging from water to precious metals (Planetary Resources, Press Release 24/4/12).

Two years after publication of this book, US President Barrack Obama signed into law an Act that granted American citizens the right to own and trade resources they have extracted from asteroids, subject to the international obligations of the US (US Commercial Space Launch Competitiveness Act of 2015). This legislation was received with enthusiasm by asteroid mining businesses including Planetary Resources (Press Release 25/11/2015) and Deep Space Industries (Press Release 25/11/2015). Within two years of the US Act, the Grand Duchy of Luxembourg passed a statute allowing Luxembourg-registered companies to do the same, with the aim of encouraging businesses interested in the commercial development of asteroid mining, to register in Luxembourg (Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace).

Rationale for the research project

At the time of writing this dissertation, Summer 2018, the USA and Luxembourg were the only two states to have passed laws to allow the commercial exploitation of natural resources in space. In both cases, the statutes have been worded so as to avoid conflict with international laws. Enthusiasts for the prospect of the birth of what some have estimated to be a trillion dollar asteroid mining business (Bloomberg, 8/3/2018) may have proclaimed that asteroid mining is now legal if operated from the USA or Luxembourg, but is it?

Does international law permit states to authorise asteroid mining and other commercial or non-profit exploitation of natural resources in space? Can resources extracted from space be owned by any state or non-state actor and can such resources be traded? Are such rights dependent in any way on a national or other claim of territorial rights to the surface of the celestial body that the resources are to be extracted from?

Such questions are no longer theoretical, given the missions currently anticipated by companies such as Deep Space Industries and Planetary Resources. ‘Space resources’ may now also be regarded as a specific academic discipline with the commencement, in autumn 2018, of a graduate programme in space resources at the Colorado School of Mines (Press release: 7/8/2018).

This work aims to provide answers to these and other questions relating to property rights in outer space within the context of international law and relevant national laws.

Scope of the research

There are two specific aspects of property rights in outer space that are within scope of this work. The first is rights, if such exist, to own mineral and other natural resources extracted or to be extracted from celestial bodies, particularly the Moon and the asteroids. The second is rights, if such exist, to own the outer space equivalent of real property on the surface of any celestial body.

Other property rights may be relevant to a general study of the law of outer space but do not fall within scope of this project. These include property rights relating to objects that are launched into space, objects constructed in space and intellectual property rights created by personnel operating within orbital spacecraft, such as the International Space Station, or within any other spacecraft.

Rights to valuable orbital positions, specifically those in geostationary orbit, have also been described as property rights by some observers (Lyall and Larsen, 2018, p56). Geostationary orbit is often referred to as geosynchronous orbit, or GEO, which is a circular orbit 35,786 km above Earth’s equator in which an object such as a communications satellite will orbit at the same angular velocity as the surface of the Earth rotates and therefore remain in the same relative position to a fixed point on the surface (NASA: Basics of Space Flight,1:5, Planetary Orbits).

None of these aspects of property rights in outer space are within scope of this project. The reason such rights are not considered relevant is that ownership of objects such as rockets, satellites and anything else launched into space, including objects and their component parts constructed in space, is not affected by their presence in outer space or on a celestial body or by their return to the Earth (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), Article VIII). The owner of an object launched into space remains the owner whether the object remains in space or is returned to Earth.

Rights to intellectual property are governed by national laws under the Berne Convention for the Protection of Literary and Artistic Works, 1886, and subsequent international agreements. This means that the only point at issue would seem to be the relevant jurisdiction in space, and this is clearly defined in the Outer Space Treaty (Article VIII). Jurisdiction within a spacecraft is retained by the state of registration of the craft. In the case of joint space missions, such as the International Space Station (ISS), the component modules retain the national jurisdiction of their origins (registration), such that an astronaut moving from one module to another moves from one jurisdiction to another as if travelling across a national border. Such questions as intellectual property rights are, however, likely to be covered in detailed agreements between the participants. The ISS Intergovernmental Agreement (IGA, 1998), for instance, determines issues such as jurisdiction and intellectual property rights and references the UN Space Treaties and other agreements as well as memoranda of understanding and guidelines specific to the operation of the ISS.

Allocation of Earth orbital locations is regulated by the International Telecommunication Union (ITU) and it is submitted that, whether or not the use of such locations is considered a ‘property right,’ the matter is sufficiently well regulated to fall outside of this investigation, which is concerned with the emerging, uncertain and unregulated laws of property rights relating to celestial bodies and any natural resources found on or within them.

Although there may be scope for further investigation into the legal issues arising from the specific rights outlined above, the focus of this work is defined by the relationship between prohibition, in international law on the national appropriation of outer space and the question of ownership of space resources extracted or to be extracted from celestial bodies. This work is, in effect, concerned with the available of rights to property in respect of what occurs naturally in outer space and not what has been put there by human endeavour.

Outline of the dissertation

This work considers the principle in international law of the non-appropriation of outer space, including the Moon and other celestial bodies. It considers the practical application of this principle to certain prospective space activities such as the commercial extraction of natural resources from the Moon, planets or asteroids and known as ‘asteroid mining’. It also looks at the related issue of ‘in-situ resource utilisation’ (ISRU), meaning the extraction, processing and use of resources for the purpose of any space mission (NASA: ISRU online). It considers national laws, where relevant, and taking account of the requirement that state parties to the Outer Space Treaty must bear international responsibility for national activities in outer space, whether conducted by state parties or any non-state parties (Article VI).

After defining the research problem in Chapter 2, reviewing existing literature and outlining the aim and objectives of the research project, there is a brief description of the methods and techniques used for this research (Chapter 3).

Chapter 4 discusses what this author has termed the ‘legal domain of outer space’, outlines the historical background of space law and addresses the important question of ‘what is space law?’ This chapter continues with a consideration of the sources of space law and briefly discusses the question of boundaries and jurisdiction in the law of outer space.

Chapter 5 considers the ‘non-appropriation’ principle in the context of the celestial equivalent (if such exists) of terrestrial ‘real’ property rights and provides an analysis of the relevant arguments. Consideration is then given to how the non-appropriation principle may affect the legal right of commercial and other non-state actors to acquire title to resources that are extracted or to be extracted from space.

Chapter 6 offers some conclusions in relation to the objectives of the research project and the research aim. This chapter also considers the implications of the research that has been done.

In essence, this study is about property rights to anything existing naturally in space and that was not launched into the heavens by human means. There is no doubt who owns the Apollo 11 lunar lander, which has remained on the Moon for almost 50 years. There is no doubt who owns each of the national modules of the International Space Station. The question is: who owns or might lawfully acquire, any part of the Moon, Mars, the asteroids and the valuable and useful minerals and volatiles that may be found on or within these celestial bodies?

If you would like to receive a copy of this dissertation, please submit a request to the author, either directly or through your academic, or local lending, library.

The story continues

Chapter 4 of the dissertation discusses what this author has termed the ‘legal domain of outer space’, outlines the historical background of space law and addresses the important question of ‘what is space law?’ This chapter continues with a consideration of the sources of space law and briefly discusses the question of boundaries and jurisdiction in the law of outer space.

Continue reading, Chapter 4: What is Space Law?

Sources, references and further reading

Ray Taylor B.A. (Hons) Humanities, LL.M. (Open)