Space law and property

This article is an extract from a wider work on law and property rights in outer space. The narrative makes more sense when read with the other parts available now.

Space law, an introduction: rationale, scope and outline

What is space law? Definition, history, sources and jurisdiction

Space law further study bibliography and source references

Real property rights

Real property rights in space and the non-appropriation principle in international law

Of the two aspects of property rights relevant to this work, consideration of whether there could be a valid title claim in respect of any part of the surface of the Moon or other celestial body would appear to be the most settled. ‘International space law clearly defines the status of celestial bodies while it leaves that of their resources rather uncertain.’ (Tronchetti, 2015 p7).

The question of legal title to resources extracted or to be extracted from space is one that raises more questions, particularly since CSLCA (2015).

Any uncertainty in either regard can be seen to have resulted from the rapid conclusion of the Outer Space Treaty. ‘The extraordinary speed at which the space treaty was concluded was due unquestionably to the need of such an agreement in advance of man's landing on the Moon,’ (Cheng, 1997, p215). The pressing need was, as has been shown in (Ch 4.1), the need to resolve issues of territoriality in order to avoid an escalation of the arms race into space.

As such, issues relating to any future interest in the commercial exploitation of space were not considered. Space was, at the time of the Treaty, exclusively a domain for state enterprise and then only the limited number of states with any level of space capability (Lyall & Larsen, p3, ref Ch 4.1).

Before the Outer Space Treaty was agreed and before the principle of non-appropriation was established, outer space (excluding celestial bodies) constituted res extra commercium (beyond private appropriation) under customary international law. Space itself was not subject to national appropriation. Celestial bodies, however, were res nullius – places that were not owned at the time but could be subject to national appropriation in the same way that unconquered and unclaimed lands on Earth could be (Cheng, p229).

The Outer Space Treaty reiterated the legal principle of non-appropriation that had been recorded by the UN General Assembly in 1963 (UNGA 1962 (XVIII)). ‘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’ (Outer Space Treaty, article II).

There is no doubt from the wording of article II that any form of appropriation by a state is prohibited. The question then arises as to whether the prohibition on national appropriation also prohibits appropriation by non-state actors. Most authorities on the subject hold that the prohibition on national appropriation includes appropriation by non-state actors (Lyall & Larsen (2018), Cheng (1998), Von der Dunk & Tronchetti (2015). A minority of authors, however, ‘consider that the Outer Space Treaty prohibits only the national appropriation of outer space and celestial bodies; per a contrario, appropriation by other entities is allowed.’ (Pop, 2000, p276). Pop quotes an example of the minority view in Gorove, S., from the 1968 proceedings of the Colloquium on the Law of Outer Space.

Lyall & Larsen has no doubt about the question of non-appropriation by private entities and dismisses outright any view that may support the legitimacy of the many commercial ventures offering to sell portions of the Moon (such as Lunarland.com) or other celestial bodies. ‘The Moon and the other celestial bodies in space as such are not available for ownership either by private individuals or by companies.’ (Lyall & Larsen, 2018, p171).

As noted above (Ch: 4.1), there is little case law to add to the academic opinion on the question of non-appropriation. One of the few cases to have addressed the issue of property rights in space was heard by a US Federal court. Although the outcome does not answer the question directly, the judge’s comments help to illustrate the lack of substance to claims of entitlement to any part of space.

The case involved an attempt by a Gregory Nimitz to claim ownership of the asteroid 433 ‘Eros’ and to charge NASA a ‘parking fee’ of $20 following the successful landing of NASA's NEAR (Near Earth Asteroid Rendezvous) Shoemaker spacecraft on 12 February, 2001 (NASA: NEAR Shoemaker mission update site). Mr Nimitz’s claim of ownership was based on his having filed the claim with the self-appointed Archimedes Institute Claims Registry.

Following the refusal of NASA to pay Mr Nimitz’s $20 invoice, the claim was taken to the US District Court, District of Nevada. In dismissing the claim on 27 April 2004, Judge McKibben declared that the claimant had failed to assert ‘a cognizable legal theory' for his ownership of the asteroid. In reference to international law, the judge said that the United States' ratification in 1967 of the Outer Space Treaty had not created any rights in Mr Nimitz to appropriate private property rights on asteroids (Nemitz vs. USA and others, 2004, p3).

The case helps to illustrate the point that simply making a claim to own any part of outer space that has not previously been claimed, does not create title. As the judgment stated, ‘There is absolutely no legal basis for asserting that such a registry [as the Archimedes Institute] creates a property interest in the asteroid.’

Looking at the broader issue of international recognition of private property claims, there are instances in history of private appropriation of terra nullia – areas beyond national territory that are susceptible of becoming subject to a claim of national appropriation. Before 1920, when Norwegian sovereignty over the Spitsbergen (Svalbard) archipelago was recognised, there were several settlements of private individuals of different nationalities there. Their various claims to private property rights to the areas they had occupied on the archipelago did not result in any claim of sovereignty by their respective governments but the US president at the time made it clear that the US government took a ‘continued and lively interest’ in resolving the question of its nationals’ rights (Pop, 2000, p278). Following the Spitsbergen Treaty (1920), which settled sovereignty on Norway, the various private claims were recognised by the Norwegian government (Treaty recognising the sovereignty of Norway over the Archipelago of Spitsbergen, 1920). This suggests that, although private appropriation can take place in the absence of national sovereignty, it must eventually be recognised by a sovereign authority.

The difference in the Spitsbergen example is that, prior to private appropriation and subsequent recognition by Norway, Spitsbergen was land that was capable of national appropriation. Outer space is not subject to national appropriation, which means that any attempt to gain recognition of a private claim would be rejected by any state party to the Outer Space Treaty.

Such a conclusion relies on an interpretation of only one operative article of the Outer Space Treaty. Further consideration of the rest of the treaty provides further evidence of the clear intention that the non-appropriation principle encompasses all space activity, whether public or private. Johnson recalls that the Vienna Convention on the Law of Treaties (Vienna Convention, 1969) requires, among other things, a ‘good faith’ interpretation of any treaty, including taking into account the meaning and intention conveyed by any preamble or other parts of the treaty, not just the operative articles. ‘Because a good faith interpretation of any treaty article requires that it is consistent with other parts of the treaty, including the preamble, Article II’s prohibition on national appropriation must be understood and applied in a way which does not subvert the preamble’s intentions and vision.’ (Johnson, 2015, p3).

The Outer Space Treaty includes optimistic phraseology such as ‘the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development,’ The preamble recognises ‘the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes.’ Such terms appear not to support a view of private appropriation.

Article I additionally states that ‘outer space, including the moon and other celestial bodies.., shall be the province of all mankind.’ Furthermore ‘Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.’

Taking the Nemitz case as an example of an attempt at private appropriation of space, It is difficult to see how a private individual, with or without state support, could lawfully deny free access to any part of any celestial body to a scientific expedition. If NASA, as an agency of a state party to the Outer Space Treaty, had accepted and paid Mr Nemitz’s ‘parking fee,’ the US government would, in this author’s view, have acted contrary to the principle of free access to space in Article I. If a court were to give further and more detailed consideration to a similar case to Nimitz at any time in the future, it might well find that such a claim could not be reconciled with Article I, article II, or the ‘intentions and vision,’ of the Outer Space Treaty.

Consideration of the Outer Space Treaty as a whole, helps to support the interpretation that celestial bodies, and any portion of their surface, are not subject to any appropriation, public or private.

Appropriation of natural resources in space

The issue of whether any natural resources to be found on the Moon, an asteroid or any other celestial body could legally be appropriated is not as clear as the issue of real property rights and has become a more controversial issue since the CSLCA was promulgated in 2015 (De Man, 2016). Even though outer space, including any celestial body or any part of it, is not subject to national appropriation, it does not necessarily follow that space resources cannot be extracted and used. In Johnson’s words, the prohibition on national appropriation ‘is not so absolute in its prohibitions so as to forbid a whole host of planned and useful activities in outer space, including the use and exploitation of existing materials on a number of celestial bodies.’ (Johnson, 2015, p1).

As has been identified (Ch.1 above), there are different reasons why minerals and other resources might be extracted from a celestial body. These include extraction of any space sample for the purpose of scientific study, extraction of a resource for the use of that resource in space, and extraction of a resource for sale on return to Earth. Looking first at the activity of removing samples from celestial bodies such as the Moon for scientific study, there are already a number of instances in the history of space travel where this been done. All six Apollo manned lunar landings, and three Soviet Luna unmanned missions, returned lunar samples to Earth. These were extracted and used for scientific purposes and, in the case of the Apollo samples, some were widely distributed around the world for scientific study and as a part of a general international goodwill exercise. Lunar samples from the Apollo missions can still be requested for scientific study (NASA Astromaterials Acquisition and Curation Office).

Current missions to extract mineral specimens from asteroids and return them to Earth include the NASA Osiris-Rex mission (NASA: Osiris-Rex Begins Asteroid Operations Campaign, 24/8/2018), and the Japan Space Agency (JAXA) Hayabusa2 mission (JAXA: Hyabusa2 mission website). The Osiris-Rex mission is scheduled to return mineral samples to Earth in 2023. Hayabusa2 is due to depart from the asteroid for Earth in 2019, having landed in September 2018, with the return date as yet unscheduled. Both missions are state-sponsored and supported by other states, universities and commercial contractors. Scientific data produced by these missions will be available for further study by others. As such, these missions can be seen to fulfil a number of state obligations under the Outer Space Treaty.

The missions are underpinned by international cooperation and the results of the scientific investigation will benefit all countries (Outer Space Treaty, Article I), or at least the benefits will be available to all countries that wish to access them. Scientific knowledge can itself be said to be a ‘classic public good’ (Dalrymple, 2002). Scientific investigation is clearly a peaceful use of outer space (Article IV) and these missions would appear to be guided by co-operation and mutual assistance (Article IX). As with the Apollo and Luna missions of the 20th Century, missions such as Hayabusa2 and Osiris-Rex are, it is submitted, the kind of lawful uses of outer space anticipated by the Outer Space Treaty.

Such missions are clearly state activities, although supported by the many non-state actors involved in the production and development of the technology necessary for such complex space operations.

There is yet to be a mission launched to extract any mineral or other resource either for use by the mission extracting the resource, or for any purely commercial purpose. There are, as has been noted, several prominent companies such as SpaceX and Deep Space Industries (see respective corporate web sites) that plan to do so and all of the major national space agencies are interested or involved in ISRU to varying degrees. There are also a number of companies that have registered in Luxembourg under the Loi du 20 juillet 2017, which suggests an intention on the part of several commercial organisations to engage in resource extraction.

There is nothing in any of the UN space treaties to suggest that commercial uses of space should not be considered lawful in international law on the same basis as the equivalent non-commercial uses by state and non-state actors. In fact, commercial use of space makes up a substantial proportion of all space use. Commercial space activities were worth over $250 billion in 2016 and exceeded 75 percent of the global space economy (The Space Foundation, 2017).

The question that arises is not whether commercial activity in space, generally, is lawful but whether commercial appropriation of natural resources in space is lawful. In order to address this question it is suggested that consideration be given to how the extraction and commercial exploitation of the resource in question relate to the concept of lawful use of outer space in international law.

It has been argued above that the extraction of any space material for scientific study may be considered a lawful use of outer space, assuming other legal obligations are met (such as the mission or space object being registered and supervised by the state of registration). It is further argued that the case for commercial extraction of space resources being lawful could be strengthened if the extraction and use met some of the mission considerations that suggest scientific missions are lawful in the above argument. For example, if the resource extraction mission, or any subsequent study, involved international participation and if the results of that study were made available internationally, it could be argued that the mission benefitted all countries (Outer Space Treaty Article I). A non-state actor could engage in such an activity providing the state of registration continued to supervise the activity as part of the state’s obligations under the Outer Space Treaty (Article VI).

Extracting resources such as water ice for propulsion, or processing into drinking water or oxygen for use by the mission extracting them could, it is argued, be a lawful use of outer space for a number of reasons. If such activity furthers scientific study into the technology required for ISRU or allows a space mission to continue to function when necessary resources have depleted, then the use could, it is argued, be considered in the same context as other scientific space missions undertaken throughout the history of space travel.

If an ISRU mission succeeds in supporting any other space mission in achieving its objectives by virtue of the resources provided for the ‘client’ mission, then it would be difficult to accept an argument that the mission providing the resource is not as much a lawful use of outer space as the recipient of the resources. The existence of a commercial contract between any future commercial provider of space resources for use by other space missions in space would seem to be consistent in purpose with the purpose of any other commercial contract to provide support services to space mission operators, such as manufacturing, launch services or ground station support.

Author note: For more developments of such concepts the reader is recommended to consider the 2020 Artemis Accords

Each of these scenarios, in the view of this author, suggests the kind of peaceful use of outer space anticipated by the Outer Space Treaty. Although such uses are not specifically permitted by the Treaty, neither are they expressly prohibited, (Su, 2017, p994). In the absence of prohibition, a comparison with other activities that have been lawfully conducted in space would support an argument in favour of permission, in the view of this author.

Looking at the third suggested type of extraction and use of celestial resources, to extract resources solely for the purpose of returning them to Earth and selling them for profit, it is less clear how such activity might be considered lawful. If a space mission were to remove, say, valuable platinum group metals from an asteroid and then return them to Earth for sale, how could such an activity be seen to benefit all countries (Outer Space Treaty Article I)? The state party authorising the mission might decide that its international obligations would not be met if it authorised a commercial venture’s space activity that benefited only the owners or shareholders of the commercial venture responsible for the activity and not ‘all countries’. There is also the question of any environmental harm that might be caused by introduction of extra-terrestrial matter to Earth (Article IX).

How would a state’s courts view such a mission, or the state agency asked to authorise it? A national court might expect a degree of legal certainty in a matter as fundamental to the international law of outer space as the non-appropriation principle. Would a court in the USA or Luxembourg consider that national legislation on the appropriation of resources has provided legal certainty? De Man (2017) argues that neither the US CSLCA, nor the Luxembourg Loi du 20 juillet 2017 provides legal certainty. He views both statutes as failing to reconcile their respective interpretations of Outer Space Treaty Article II with Article I obligations.

The wording of CSLCA is clear on the issue of appropriation. ‘A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.’ The Act directs the president to facilitate such activity and to discourage government barriers to the development of a resource recovery industry. The president is to promote such rights ‘in accordance with [international] obligations and subject to authorization and continuing supervision by the federal government.’ (Title IV: Space resource exploration and utilization, Sec. 402). Section 403 makes clear that the USA does not ‘assert sovereignty or sovereign or exclusive rights or jurisdiction over, or ownership of, any celestial body.’

It could be argued, however that, by authorising an appropriation by a private entity, that is exactly what the USA would be doing, however unintentionally. This would be true if the private appropriation were to be considered to amount to a national appropriation within the meaning of Article II. It could be argued that the distinction between national and private appropriation is ‘a distinction without a difference.’ (Tennen, 2016, p288). Tennen argues that to permit any form of appropriation would also allow other and conflicting claims to be made on a first discovery basis. The lunar orbits and space surrounding the Moon, for instance, could be claimed by Russia on a ‘first-come basis’, given the Soviet Union’s success in achieving the first flight around the Moon in 1959 (p289). Tennen’s comment might be considered rhetorical, however, given that Article II of the Outer Space Treaty would no more permit appropriation of lunar orbital space than it would permit appropriation of the Moon itself.

There is nothing within the CSLCA to indicate how the right to own and trade space resources will be reconciled to the principle of non-appropriation of space in article II. Neither is there any explanation of how the very high standard of international cooperation and mutual benefit of all countries set by the preamble to the Outer Space Treaty would be met. The Luxembourg Loi du 20 juillet 2017 merely states that ownership of extracted resources is lawful and so presuming that the legal reasoning is self-evident.

This issue has been addressed by the Luxembourg Conseil d’État, which considered that the question of the appropriation of resources extracted from celestial bodies had not been definitively decided (Luxembourg, Opinion of the Conseil d’État, 7 April 2017, p5).

International concerns that the terms of CSLCA are not consistent with international law including the Outer Space Treaty, have been raised in the Legal Subcommittee of COPUOS. Some delegations also expressed the view that resolving legal aspects of resource extraction on the Moon and other celestial bodies based on the principle of ‘first come, first served’ was not desirable or compatible with the principles of equality of access to space and allocating its resources to all humanity (UNCOPUOS Legal Subcommittee, 2016, A/AC/.105/1113/83). Two years later, international opinion, as expressed in the report of the Legal Subcommittee, remains divided on the issue (2018, A/AC/.105/1177/238-265).

Perhaps one important development during the April 2018 session was that the subcommittee welcomed (A/AC/.105/1177/64) the ongoing work of the Secure World Foundation (SWF) and the Hague Space Resources Governance Working Group (HSRGWG). The latter has produced a ‘draft building blocks’ document aimed at developing an international framework on space resource activities (Hague Space Resources Governance Working Group, 2017). Others delegations pointed to provisions that govern deep seabed mining under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) as providing a regulatory model.

Such debates as those that take place in the Legal Subcommittee emphasise the legal problem of national legislation that fails directly to address the fundamental questions of conformity with international law relating to the non-appropriation principle. This problem contributes to the legal uncertainty over whether any of the enterprises currently contemplating commercial extraction and exploitation of space resources will be able to do so legally, once they have developed the required technology.

Moreover, states that do not accept the right of American citizens or companies registered in Luxembourg to exploit space resources might challenge any attempt to do so. This adds to the uncertainties faced by any such ventures in a way that could discourage or delay investment in such activities.

Other uncertainties might also become evident. As stated above, little has been said in the available literature so far about the environmental obligations on states engaged in, and authorising, space activities (Outer Space Treaty, Article IX). As a matter of general international law ‘states have a responsibility to ensure activities within their control do not cause damage to the environment of areas beyond the limits of national jurisdiction.’ (Lydall & Larsen, 2018, p 246).

Consideration should also be given to the economic effects, for instance, of returning large volumes of a valuable metal that was previously in short supply. This could potentially depress the commodity price of any such metals. If any state economy relied on terrestrial production of a metal that was to be mined from space, then not only would the space mining activities not benefit other countries, they could potentially have a serious detrimental effect on some.

It seems likely that the uncertainty in international law, in respect of private appropriation of space resources will continue. This position is in contrast to the (arguably) certain legal position of non-appropriation of celestial bodies and space as a whole.

There may be a further uncertainty to consider. Although none of the Apollo lunar samples returned to Earth has, to date, been sold legally (some may have been acquired and sold unlawfully) a sample of lunar mineral from the first Soviet Luna mission has been sold. The sample was less than one gram and was sold at auction by Sotheby's in 1993 for $442,500. (New York Times Archives, 1995, p001024). This suggests that title was passed, legally, from the Russian government to the buyer.

The lawfulness, or otherwise, of such transactions is not a matter for the law of outer space, however. Having been lawfully obtained by the Russian government, the samples were sold and title passed according to the laws of New York, regardless of the origin of the specimens in outer space. The same could be said of any meteorites found on Earth that might be sold. The outer space origins of these pieces of what were, until they entered airspace, celestial bodies, would not alter the right of the jurisdiction in which they have been found, to determine ownership. In this author’s view, the fact that a sample of lunar regolith has been lawfully extracted from space, and title to this resource has subsequently passed from a state party to a non-state party through a contract of sale, suggests that other such transactions in space resources might also be considered lawful. The question may, of course, depend on title having been legally acquired by the vendor in the first instance. In resolving such a question, a domestic court, it is suggested, would need to take into consideration the ordinary legal regime for a contract of sale in the jurisdiction that the disputed transaction took place, as well as the international laws relating to the non-appropriation of space.

Further reading

Space law, an introduction: rationale, scope and outline

What is space law? Definition, history, sources and jurisdiction

Space law further study bibliography and source references

The Dissertation, Law and property rights in space was submitted to the Open University in 2018. There have been considerable developments relating to the regulation of space activity since then. Any further study of space law and space resource utilization should begin with a consideration of the Artemis Accords, 2020. It should also take into account a rapidly changing Geopolitical environment and a general deterioration in relations between Europe and Russia in recent years.