To start things off, I wanted to provide everyone with a quick update on my application to participate in the upcoming 66th International Astronautical Congress set to take place in Jerusalem, Israel in October of 2015, which was discussed in my previous blogpost. As it so fortunately turns out, the International Astronautical Federation recently notified me that it has accepted and selected my proposed abstract entitled "Extraterrestrial Law and Order" (the full text of which can also be found in my previous blogpost) for an interactive presentation at the 66th International Astronautical Congress (woohoo!). Concerning my particular application for a spot in the International Astronautical Federation's Emerging Space Leaders Grant Program in relation to the 66th International Astronautical Congress, however, notifications are scheduled to be sent out to all Grant applicants, including myself, tomorrow (that said, I will be crossing my fingers in the meantime and am hoping to hear some further good news on the matter!).
Shifting gears now, and as you may recall from two of my other prior blogposts, I had previously touched upon the issue of how the relevant system of ownership rights in the context of international space law might be structured with respect to both the hypothetical construction of the so-called "Luna Ring" and the moon itself, as well as the issue of what system of law, if any, would govern the inhabitants of a permanent, privately-established human colony on Mars in the manner suggested by Mars One's ambitious "Mars One Mission." In this blogpost, we will once again take a look at how the current space-law regime may impact future human activities in outer space, but this time we will briefly delve into a handful of the international space-law obligations that ought to be taken into account with respect to an ongoing attempt by the U.S. Congress to create domestic legislation that seeks to establish property rights over resources found in outer space; specifically, the proposed American-Space-Technology-for-Exploring-Resource-Opportunities-in-Deep-Space Act of 2014 (otherwise known as the "ASTEROIDS Act").
The so-called ASTEROIDS Act was introduced in the U.S. House of Representatives back in July of 2014 by Representative Bill Posey of the State of Florida and Representative Derek Kilmer of the State of Washington. The ASTEROIDS Act, if ultimately passed and implemented, would establish that resources obtained from asteroids would actually be deemed to be the property of the company or other entity that had extracted them; it would also provide "freedom from harmful interference" for those particular entities subject to U.S. jurisdiction that will be participating in the mining of asteroids.
In particular, the ASTEROIDS Act sets out to create property rights in resources extracted from asteroids, stating that “[a]ny resources obtained in outer space from an asteroid are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law.” Furthermore, the ASTEROIDS Act defines a commercial asteroid resource utilization entity as “a person or company providing exploration or utilization services” that is either organized under U.S. law or subject to U.S. jurisdiction. Moreover, the ASTEROIDS Act creates a “first-in-time” provision for entities over which the U.S. can assert jurisdiction, stating that “any assertion of superior right to execute specific commercial asteroid resource utilization activities in outer space shall prevail if it is found to be first in time, derived from a reasonable basis, and in accordance with all existing international obligations of the United States."
That said, on September 9th, 2014, the House Committee on Science, Space and Technology, Subcommittee on Space held a hearing entitled "Exploring Our Solar System: The ASTEROIDS Act as a Key Step" (a full video of this hearing can be found here: https://www.youtube.com/watch?v=MAa-i5I2Jts). The aforementioned hearing addressed a wide variety of space-related topics, during which Joanne Gabrynowicz (Director of the National Center for Remote Sensing, Air and Space Law and Research Professor of Law at the University of Mississippi School of Law, as well as the former Editor-In-Chief of the University of Mississippi Journal of Space Law) offered insightful testimony on a handful of the legal complexities and difficulties associated with the crafting of such a piece of legislation as the ASTEROIDS Act in relation to the current international space law regime. As such, the specific text that follows is a detailed summary of the discussion that was facilitated by Joanne Gabrynowicz at the September 9th, 2014 hearing (as originally provided by The Space Review, together with various legal and academic references thereto, at http://www.thespacereview.com/article/2604/1):
INTERNATIONAL SPACE LAWS REGARDING OUTER SPACE RESOURCES
Launches to, reentries from and activities carried out in outer space are governed by a series of treaties, the foundational instrument being the "Outer Space Treaty." The provisions of the Outer Space Treaty most relevant to the ASTEROID Act are as follows. First, under Article I, the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries and shall be the province of mankind. Additionally, Article I mandates that outer space shall be free for exploration and use by all states, on the basis of equality, in accordance with international law, and that all states shall have free access to all areas of celestial bodies. Under Article II, outer space is not subject to national appropriation by any means. Article IV renders states internationally responsible for national activities in outer space and mandates the authorization and continual supervision of non-governmental entities engaged in such activities. Article VIII recognizes that states retain jurisdiction and control over space objects that appear on their registry. Duties regarding registration have been further elaborated by the Registration Convention. Finally, Article IX mandates that a state enter into consultation with another State if it believes that its activities in outer space might interfere with the other State's exploration and use of outer space. These laws are considered below to offer some initial thoughts regarding the obligations of the U.S. in formulating a property law regime for outer space resources.
ARTICLE I: BENEFIT AND INTEREST OF ALL COUNTRIES; PROVINCE OF MANKIND
The mandate that outer space be used for the benefit and interest of all countries and the classification of outer space as the province of mankind raise an issue as to whether spacefaring nations have an obligation to share resources obtained in outer space with other states. The positions of the Soviet Union and the United States during the negotiation and ratification of the Outer Space Treaty were that Article I constitutes a statement of general goals, that it does not create specific obligations, and that it was left to individual states to determine how the benefits of the use of outer space would be shared. These positions are subject to debate, rendering somewhat unclear the obligations arising out of Article I. Contrasting Article I with the "Moon Treaty," however, offers some clarity. Article 11 of the Moon Treaty declares the Moon and other celestial bodies to be the "Common Heritage of Mankind," allowing for exploitation of resources on celestial bodies only under the supervision of an international regulatory authority, similar but not identical to the Law of the Sea Convention regarding deep sea beds. The perceived necessity of incorporating "Common Heritage of Mankind" language in the Moon Treaty calls into question whether Article I of the Outer Space Treaty creates obligations respecting a global commons and lends support to the U.S. position, described above. The U.S. has not signed, ratified, or acceded to the Moon Treaty. Unless provisions of the Moon Treaty evolve into customary norms, the U.S. will not be bound by any of its obligations. Most likely, the "Province of Mankind" language of Article I of the Outer Space Treaty describes outer space resources as "res communis," similar to fish in the high seas, rather than as the "Common Heritage of Mankind," such as minerals in the deep sea beds. The development of property rights legislation for outer space resources would benefit from more clarity in this issue.
ARTICLE II: THE PROHIBITION ON NATIONAL APPROPRIATIONS
Article II renders outer space "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Article I expressly endorses the use of outer space, which includes extraterrestrial resources. Article II means that such use can never rise to the level of an appropriation: states (and their nationals) are free to use outer space but such use can never result in a legal claim to territory, as it sometimes did in terrestrial circumstances. Although the adjectival use of "national" plays some role on the meaning of "appropriation," private appropriations are prohibited as well. As discussed by Joanne Gabrynowicz during the ASTEROID Act hearing, a U.S. District Court has already weighed in on this matter, interpreting the Outer Space Treaty as prohibiting private appropriations in outer space. What this means is that private entities cannot own real property in outer space, but it does not mean that private entities cannot extract resources therefrom. Less clear is the circumstance where an asteroid is consumed by such extraction, as this could be perceived as a "de facto" appropriation.
ARTICLE VI: LICENSING OUTER SPACE MINING
Under Article IV of the Outer Space Treaty, states must authorize and continually supervise activities conducted in outer space by non-governmental entities. in the U.S., these duties have been delegated to the Secretary of Transportation, and, in turn, to the F.A.A. Office of Commercial Space Transportation (A.S.T.), which accomplishes such duties by issuing experimental permits and licenses to commercial operators for launch and reentry. Before U.S. industry stakeholders can begin extracting resources in outer space, a similar license and monitoring process must be initiated. Such licenses need not be onerous to industry stakeholders and could serve as a means for establishing a system for "first-in-time" rights to particular asteroids. For instance, a license might be issued on the basis of an illustration of technical and financial wherewithal and could provide a right to mine an asteroid to the exclusion of other U.S. entities for a particular time period. In this manner, the U.S. can meet its obligations arising from Article VI of the Outer Space Treaty and industry stakeholders can be assured that no other U.S. entity is permitted to attempt to mine such an asteroid.
ARTICLE VIII: JURISDICTION OVER OUTER SPACE RESOURCES
Although Article II of the Outer Space Treaty prohibits the acquisition of territory in outer space, Article VIII mandates that a state retain jurisdiction and control over objects that appear on its registry. Such jurisdiction is not based upon territorial sovereignty and is sometimes referred to as quasi-territorial jurisdiction. It is not unlike the type of jurisdiction and control exerted by a state over a ship on the high seas or an aircraft in international airspace. Objects over which this jurisdiction extends include the personnel, component parts, and payload aboard a spacecraft. Were materials launched into outer space used to construct a mining facility on an asteroid, such a facility, including personnel and materials aboard the facility, would likewise fall under the jurisdiction of the state of registry. Everything onboard a spacecraft is subject to this quasi-territorial jurisdiction, including resources gathered from an asteroid and taken onboard a space object. Such jurisdiction can include the property laws of the state of registry. This situation is similar to the extension of U.S. intellectual property law to inventions made aboard a U.S. registered space object, thereby providing a precedent for the extension of U.S. property law into outer space notwithstanding a lack of territorial sovereignty.
ARTICLE IX: SAFETY/EXCLUSION ZONES
Under Article IX of the Outer Space Treaty, states must take measures to avoid the harmful interference with another state's exploration and use of outer space. Such freedom from harmful interference will extend to private actors engaged in mining operations on an asteroid. Because space activities have been recognized as ultra-hazardous, states should be entitled to create exclusive safety zones around mining facilities. A tension exists between the Article IX guarantee of freedom from harmful interference and the Article I guarantee of free access to all areas of celestial bodies. In order to strike a balance between these interests, exclusive zones should be narrowly tailored in size and duration and limited to the extent reasonably necessary to carry out mining operations in a safe manner. By basing the size and duration of a safety zone on a measure of reasonableness, U.S. law can be flexible enough to meet industry needs while adequately honoring the international obligation of free access. The creation of an exclusive zone runs the risk of being a "de facto" appropriation prohibited by Article II. Preserving safety, however, meets States' obligation of international responsibility arising under Article VI and removes the character of an appropriation: the prohibition on other States' access is not based upon an appropriation but upon the safe functioning of the facility given the ultra-hazardous conditions. Precedents for such protective zones exist in the Law of the Sea. By limiting the exclusive zone to that which is reasonably necessary in geographic and temporal scope, the prohibition on national appropriation should be respected.
By adopting a property law regime that is narrowly tailored to fit within the general principles and customary international laws recognized in the Outer Space Treaty, the U.S. can avoid the debacle of the Law of the Sea Convention, wherein developed and developing nations disagreed over the meaning of "Common Heritage of Mankind," resulting in a legal paralysis in regards to the deep sea beds. By adhering to the strictures of the Outer Space Treaty, the U.S. can place its domestic legislation beyond reproach, paving a way toward a reasonable and equitable scheme for the development of extraterrestrial resources and giving investors the assurances needed. The ASTEROIDS Act appears to be a useful first step in this direction.
*If you would like to delve further into the legal intricacies of the ASTEROIDS Act as it has been proposed in the US House of Representatives, here is a link to the full text of the Act: https://www.congress.gov/113/bills/hr5063/BILLS-113hr5063ih.pdf.
