§ 7.3.1 Legal History and Issues

§ 7.3.1.1 - International and national laws

§ 7.3.1.2 - Should the vagueness of international law significantly discourage private ventures today?

Summary

The law regarding utilization of space resources is not very well developed at all.

Many leading space lawyers have expressed, both in published papers and verbally, that there is nothing in international law that stops a private entity from going out and claiming private property ownership over, say, asteroidal resources which they physically utilize, or possibly an entire asteroid visited by humans or teleoperated robotic representatives, and that there is plenty of terrestrial precedent in the law for doing all of this. Some of the case studies they cite, which may lay the precedent for claims of space resources, will be discussed in this article, after a discussion of international law in general.

Regardless of the various legal opinions from all sides on these matters, there are a few things which virtually every lawyer agrees on: Space law is vague and underdeveloped, and the only thing likely to change this is someone staking a claim to space resources and having a court case. Terrestrial laws are likely to govern initial utilization of nonterrestrial resources. However, it is premature to enter any court cases yet, and the first case doesn't have much merit until after a physical claim is made by a human or teleoperated robotic representative.

As unique cases arise in space, we will over time develop a set of legally binding rules to prevent different operations from interfering with each other or significantly degrading the operating and living environment, especially of near-Earth space.

International and National Laws

The initial international space treaties were developed by the United Nations Committee on the Peaceful Uses of Outer Space (UN-COPUOS) which formed in 1958 (shortly after Sputnik). UN-COPUOS grew in size to 53 nations but was dominated by the conflicting interests of the capitalist vs. communist nations. Almost the only treaty provisions which passed were those which included unobjectionable, massive ambiguities that in many ways hid compromises and unresolved issues. Much of the focus was on nations rather than on private enterprises, which was a result of the Cold War.

One document stands out in space law, the 1967 Treaty on Principles Governing the Activities of States, better known by its shortened slang name, the 1967 Outer Space Treaty, which was ratified by almost every country. The 1967 Outer Space Treaty prohibits governments from making territorial claims of celestial bodies, e.g., the first man on the Moon could not claim the Moon for his country, and likewise for Mars.

It is commonly pointed out that the 1967 Outer Space Treaty does not restrict private entities from staking private property claims, and that private property claims were sufficiently defended. In fact, the 1967 Outer Space Treaty says that space, including celestial bodies, is free for exploration, use and exploitation by all. It also establishes that international law extends to space and celestial bodies.

One counterargument goes as follows: Orthodox international law deals mainly with governments, not private entities, and since the rights of private entities of a particular country are limited by their own particular government which in turn is limited by international law, then if your government can't claim territory, a private entity can't either. There are many counter-objections to this objection, of course. For example, private entities can own property in international waters which their government cannot and which are not within the territory of the government that the private entity is a citizen of. There are also multinational corporations (which in turn are staffed with people of different citizenships and even dual citizenships), and multinationals own property around the world. Finally, it's also been pointed out that the most communist interpretations of the treaty would mean that "celestial bodies" clearly include planets around other suns which may be occupied by extraterrestrial civilizations of life, and those entities could not own the property they originated on. In fact, their planet exists for the benefit of mankind on Earth.

Notably, the Soviet Union sold a very small sample of the dirt that it brought back from the Moon, for $500,000. This set a precedent of a government owning and selling a resource extracted from a celestial body in outer space. The government didn't claim the territory where they removed it, but they clearly did claim ownership of the material removed. The US government has also asserted ownership over its samples.

(A private company, Applied Space Resources, Inc., previously tried to raise capital for a mission to the Moon to extract more resources to bring back for sale on Earth, citing this case as a precedent. Their website subsequently disappeared and we haven't heard anything more about them, after a very big public relations splash and a lot of activity for awhile. Their revenue stream was not ambitious enough.)

The new company Deep Space Enterprises Inc. plans to bring back asteroid material. One of its members is Geoffrey Notkin, who is well known for his TV series Meteorite Men where he teams up with businessman Steve Arnold who sells meteorite samples. There has been discussion of Deep Space Enterprises possibly selling asteroidal material for one of its many revenue streams.

The whole issue of "private property vs. government territory" is where the debate starts. Look at the extremes. In some countries such as the U.S., the government may not step foot inside private property without either the permission of the owner or a court-issued warrant based on persuasive criminal evidence, whereas in some other countries there is no such thing as private property.

Orthodox international law started off when much of the Earth's land was owned by divine-right monarchs and other central figures. Several centuries saw colonization. In the 20th century, international law went through a period of struggle, as communist and socialist governments saw capitalism and private property as a historical aberration that had to be tolerated in certain ways on the ultimate way to some sort of scientific communism, whereas Western democracies led the defense of multinationals and private property rights. With the formation of the United Nations after World War 2, an international body was broadly supported to facilitate the development of multilateral treaties. Within a decade came Sputnik and then UN-COPUOS.

(It's ironic that the first decade of the space race coincided with the decade that the European powers lost most of the remaining colonies they had obtained over centuries of colonization. The losses were due to a trend of indigenous independence movements, not anything in international law. But there was no drive to colonize uninhabited celestial bodies for their wealth and frontier.)

The fact that history has proven Darwinian capitalism to be naturally selected over communism has considerably swung the tone of judgements and the formulation of international law. The proven benefits to almost all world peoples of private sector development of space (e.g., communications satellites) has laid the foundation for future laws to be more accomodating to free enterprise. However, contemporary resistance for private property rights can always be expected from the representatives of some governments on Earth in the form of legal arguments, including those who have no spacefaring power -- "the have-nots", regardless of the fact that the have-nots will benefit from space only if the "haves" can invest in and develop space.

Let's assume for the sake of argument that private property claims of asteroid real estate is generally accepted in the near future. That still leaves another nuts and bolts issue: If a private entity can stake a private property claim to a particular area on an asteroid, then how will this claim be enforced? If another entity from another country decides they want to mine that same area, too, and sends mining equipment out, how will the conflict be resolved? No particular government can enforce a private claim since no particular government can claim territorial jurisdiction. Private use of force, i.e., without the delegated authority of a government, would constitute piracy on the high seas of interorbital space.

Already, it is possible to claim "property" in geosynchronous orbit. Both companies and countries can claim a volume of space for their satellite(s), can legally exclude others from this space, and of course can make a private profit from use of this space. The authority that can delegate these international rights is the International Telecommunications Union, which allocates these property rights based upon a claim and a fee.

Oil and gas companies currently extract resources from the seabed on property they do not own, but based on concessions from the nation-states having sovereignty. However, this is different from operating in territory beyond the jurisdiction of any government and based on an international regime.

Mining the seabed in international waters is another area of international legal discussion, though this field has not been pushed strongly due to the economic advantages of mining ores on land. (See also the Convention on the Law of the Sea, which also dealt with the issue of the "common heritage of mankind" a decade after the Moon Treaty.)

The so-called Moon Treaty of 1979 allegedly sought to set up a similar body to the International Telecommunications Union, as stated in Article 11, Paragraph 5:

5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

The Moon Treaty was formulated by UN-COPUOS and submitted in 1979 in reaction to the prospects of mining the Moon, and the vagueness of the 1967 Outer Space Treaty as regards property rights on celestial bodies in outer space. It stated that the Moon was the common heritage of mankind (CHM) and that when celestial mining became a near-term reality, nations would set up some kind of international regime to govern the exploitation of the Moon. U.S. government officials involved in the consensus drafting process stated that the U.S. interpretation permitted private enterprise, but the U.S. Senate still blocked the treaty and indeed, no major space power has ever signed or ratified the treaty, so that the Moon Treaty has essentially no legal status. Only 13 countries in the world have ratified the treaty in the 34 years as of 2013, none of those are space faring, and any can withdraw after 1 year of notice. Remember, that was before the massive fall of communism in the next decade.

It's notable that the 1979 Moon Treaty emphasized the Moon as an exceptional celestial body as part of the common heritage of mankind. This may be a sensitive issue. Asteroids do not have the historical cultural and religious significance as the Moon.

Notably, the Moon has gravity and can retain a significant atmosphere due to pollutants from mining and material processing. These issues may be revisited in international law despite the failure to get the 1979 Moon Treaty signed and ratified by any significant spacefaring nations.

One reason the 1979 Moon Treaty failed is because it did not state clearly enough that private enterprises would gain clear property rights. Other reasons: the fear that private property rights would get bogged down in an international bureaucracy staffed with officials resistant to private ownership and/or favorable to a kind of communistic or socialistic joint ownership with the impoverished have-nots, or would try to extract exhorbitant taxes thereby driving up the cost of doing business in space. The "common heritage of mankind" clause drew considerable criticism based on alternative interpretations.

Indeed, in the period subsequent to the Moon Treaty, the UN-COPUOS has not had a single document be ratified by the US as a treaty or go into international law. It meets every year and the nations discuss various issues, and progress was made in two areas: nuclear power in space and remote sensing. The only quasi-legal document passed by UN-COPUOS was the Principles on Remote Sensing, and the compromise that allowed it to receive consensus required the document to be submitted to the U.N. General Assembly as a resolution, not a treaty, and thus be a statement of international policy and not a treaty with the status of international law.

Of course, in the decade after the Moon Treaty, communist regimes fell in many countries, and The Cold War ended.

In the United States of America, there are a variety of governmental organizations regulating outer space activity, including the FCC (Federal Communications Commission) regulating satellite frequency transmissions, the Dept. of Transportation for licensing launch operations, and the Dept. of Commerce and NASA have their own jurisdictions as well. Criminal activities on board U.S. spacecraft anywhere in the Universe are subject to prosecution in the USA, according to laws passed by the U.S. Congress.

Criminal and non-criminal activities of U.S. citizens on a no-man's-land asteroid may be another matter.

One provision which is not ambiguous is Article VI of the Outer Space Treaty, which states that nations are held responsible for the actions of their nationals, and strict liability was the measure for damages on Earth caused by space activities, without regard to negligence and without a cap on liability. The effect of this has been for governments to reinforce their laws governing their nationals, and high insurance premiums by private insurers of launch systems.

Liability is a big reason why launches are made from coastal places whereby the rocket passes over ocean in its trajectory.

By far the largest liability to date occurred in 1986 when an Air Force Titan rocket exploded just above the launch pad. The total damage to the launch pad and surrounding area was $58.1 million. (Larger damages have occurred by aircraft crashes.)

Once a rocket and its payload have lifted up above the atmosphere and accelerated over the ocean, they have gained a high speed such that if they fail they are likely to break up and/or burn up, and thus not cause extensive damage, plus they are loaded with explosives which can be detonated from the ground to break up hard pieces.

In 1978, the Soviet satellite Cosmos 954 fell from orbit over Canada's Northwest Territories. The problem is that it had a nuclear power plant which was not well designed, resulting in the spreading of low-level radioactivity over a large geographic area. Canada submitted a claim of $14 million for clean-up, whereas the Soviets agreed to pay $3 million, claiming that the Canadians had spent too much on the clean-up and was also billing for U.S. efforts to recover sensitive information on the Russian space program from the debris.

The main issues these days seem to be in regard to frequency allocation and footprints of satellites, as newly launched satellites interfere with those already in space owned by entities in different countries, and some of the holes and ambiguities in the international treaties are being felt by the service providers and their clients. In some cases, it has become simply an issue of a later satellite elbowing out the services of an earlier satellite, and if no arrangement can be made in private then one party loses out, as occurred in Thailand in 1997. Service providers are often left to national laws and any regional treaties.

Many of these space problems would go away if we had large scale space industrialization. Larger communications satellites would give us smaller transmission footprints on Earth so that satellites don't interfere with each other. Satellites already in space could be modified or worked on so that problems are solved. Satellites in low orbits need not ever fall to Earth as a clean-up truck in orbit could go fetch any old satellites in decaying orbits, using economical fuel propellants from asteroidal material. A space insurance company could finance a two-way business which both reduces their liability and provides a profitable service to clients both new and old.

There are current legal efforts, both domestic and international, aimed at limiting liability of entities engaged in launching rockets.

Regarding claiming ownership over asteroidal resources, it appears that the ancient Roman law of pedis possessio will apply. Pedis possessio is the basis for Western law on ownership, and analogies have long existed in other parts of the world as well. It means that the first entity to set foot (pedis) upon and occupy a space can claim possession. The current iterations of pedis possessio in modern mining law will probably apply.

Modern law also has precedent for robotic "tele-possession" (e.g., discovery and claim of sunken ship treasure in internatonal waters discovered and visited only by teleoperated equipment).

The Moon may be treated differently from asteroids. Legal issues aside, the Moon is one large body already in orbit around Earth, is well known by all cultures on Earth since the advent of man (and worshipped by some over the eons), and in some ways is environmentally sensitive, e.g., industrial operations could result in a significant atmosphere around the moon which would degrade its natural state and could interfere with others' scientific and industrial operations as well. As utilization of space resources starts to occur, international legal concern is sure to ensue as regards the Moon.

An asteroid, on the other hand, is not an intrinsically unique and environmentally sensitive body as regards the common heritage of mankind, nor is it perceived as a limited resource in practical terms. Near Earth asteroids are so numerous that we couldn't possibly lay claim to 1% of the near Earth asteroids of size 1 million tons or more, by pedis possessio over the next hundred years, even if we had already detected half of them by telescope (which we will not have accomplished anytime in the near future). After the first asteroids are exploited, and space infrastructure is established over the next 20 years, the range of economically exploitable asteroids will further increase dramatically and the resources will become much more accessible to small entities.

With the exception of environmental laws in near-Earth space, it may be best to not let governments draft refined mining laws until the field matures further, i.e., until the field defines itself through actual operations and demonstrations. As one of the leading lawyers in the field, Bruce S. Marks, wrote: "... those miners themselves who are active should first devise practical regulation upon which they would consensually rely. As has been the situation previously, from the time of the California Gold Rush through the recent negotiations surrounding the seabed treaty and hard mineral extraction projections for the seabed, extra-legal regimes, followed by eventual codification of consensual law, appear to be the most workable solutions for humankind's advance into new frontier resource regions." (Reference).

There are a couple of articles by Wayne White which propose a regime of limited property rights in outer space guaranteed by nations whereby the nations do not have to claim any territorial sovreignty. There are precedents for this sort of property rights regime in regard to Spitzbergen Island around the start of the 20th century in which on-site work was performed and the island was settled. These ideas appear to provide a robust framework that allows commercial development and exploitation of extraterrestrial resources. They don't appear to have any problems fitting within all existing treaties that the US has signed. The ideas also seem to be pretty acceptable to a fairly wide range of groups, ranging from Socialists to libertarians. (The author is thought to be libertarian.) These ideas have made some significant inroads in the space law community in the past 2 years. ("Real Property Rights in Outer Space" Proceedings, 40th Colloquium on the Law of Outer Space, 1998. "Implications of a Proposal for Real Property Rights in Outer Space" IAF Congress, The Netherlands, 1999.)

Right now, there's no place officially recognized place to go to claim asteroid land property.

Notably, there are people who have already "claimed" every planet in the solar system, merely by announcing that they have claimed it. Some are even selling title to parcels of land based on that claim. It's said that one company has made nearly $1 million in property sales. No attempt has yet been made to enforce these property claims in court, and it seems unlikely they will be enforced.

International treaties can be amended or even withdrawn from (abrogated). For example, if the U.S. government doesn't agree with a future interpretation of the 1967 Outer Space Treaty in a world court, a Senate resolution or Presidential initiative could result in a written announcement giving notice (typically six months to one year, depending upon treaty) that the U.S. is withdrawing from the treaty. There is some constitutional debate in the U.S. in regard to the relative roles and authorities of the Senate vs. the President as regards treaties, which arose in the case of disagreements over whether to continue honoring the Anti-Ballistic Missile (ABM) Treaty. (Space resources advocate G. Harry Stine's book Halfway to Anywhere cites the case where President Carter reputed a treaty with Taiwan without consent of Congress, which was upheld by the Supreme Court but in a split decision which left potential future issues unresolved. ( http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=444&invol=996 ) However, it's likely that the President and the Senate would agree on the "common ground" issue of private property rights in space.

There's also the possibility that a group of people will go to an asteroid and colonize it, declare themselves a new nation, and note they are not a signatory to the 1967 Outer Space Treaty and thereby claim ownership. To date, a nation has been defined by its national borders, with disputes sometimes resolved by the World Court along the lines of population demographics.

Even simpler than that, what if the first spacecraft going to an asteroid is owned by an "offshore company" established in an existing flag-of-convenience country that is not a signatory to the 1967 Outer Space Treaty (assuming the company thinks there realistically might be a problem with the treaty), perhaps the spacecraft prospecting and mining equipment is assembled there, and the astronauts are recruited and trained there as well? It doesn't matter whether they are launched from the U.S. or Russia or China.

§ 7.3.1.2 Should the vagueness of international law significantly discourage private ventures today?

It is often stated in public that no company should or will invest in asteroid or lunar prospecting and mining until private property rights are secured. There are several arguments against this:

1. This is a chicken-vs.-egg argument
2. It seems pretty unlikely there will an adverse judgement to the first claimant
3. Even if private property rights are not granted immediately, the project would still be profitable

This section will mainly address the third issue.

The argument against investment states that if you spend millions of dollars of your own money and the best part of years of your life on a probe that goes out to do a geologic survey, you want to make sure you can stake a claim and say "stay off of my property" so that others don't "jump your claim". The analogy is an 1800s prospector going to Colorado. He makes great sacrifices by investing his best time, energy and money into his hunch. He finds gold (or tellurium or copper or whatever), does a complete study, characterizes a plot, and stakes a claim as private property. He is the first one to ever go there, and the only one (ignoring those unfortunate "indians" for the sake of argument). He comes back and starts trying to raise capital by a stock company, by displaying his data in his case to potential investors. If the courts decide that he cannot exclude others from going to mine his property, he's just lost all that money, time and effort he put in before he found the claim. That asteroid would turn into a place where the biggest robot wins (I think that's Jim Dunstan's line), or the biggest laser, or the first anti-transhab elephant gun.

However, I would argue that as regards asteroid prospecting and property rights, the right to claim property and exclude others immediately may not be so vital an issue to business.

A 100 meter diameter asteroid is over a million tons of material. That's a very small asteroid by today's standards of known near Earth asteroids -- the vast majority are much larger than this. Volume and approximate weight increase by radius ^3 for approximately spherical asteroids. (I know, they're weird shapes, but you get the point. No matter how you cut it, you get squares and cubes in there. 200 meters becomes not twice but 4 or 8 times the mass.) IN SHORT, there's enough room to have a lot of people mining away.

The first business could get some early revenue and cash flow by selling shovels and data. Remember, the vast majority of the successful people in the Western U.S. prospecting and mining industry in the 1800s were not those looking for the ores but were those "selling the shovels", i.e., those selling goods and services to the prospectors.

The first business will have a significant jump on the others. You snooze, you lose.

For any entity wanting exclusivity to the entire asteroid, it's imperative that the prospecting company not give away their prospecting data... but I find it hard to believe that any business plan will be this simple. On the other hand, if they have lots of shovels and other products and services to sell, they may want to sell or even give the data away.

Notably, while rockets and communications satellites are a strength of Western companies and countries, we're on much more even ground when it comes to mining and materials processing of space resources. And THAT's where the patents are. You can make a strong case for patent based on experimental results (a law designed to reward investment in R&D). It is THIS, I believe, that will fuel the space race for a jump on the competition.

As regards property rights, I don't think we're going to have a problem with the first court case, as long as the first entity doesn't leave it up to haughty, overconfident and careless lawyers. We have no shortage of good lawyers who've proven themselves in many ways in the space resources community over the many years, and I urge anyone who makes any plans along these lines to START with a good lawyer. Several of the best of these are listed below.

Space law links

The Archimedes Institute at https://www.spacesettlement.com/archimedes as covered in the next section.

Within the United Nations site is the U.N. General Assembly Resolutions and International Treaties Pertaining to the Peaceful Uses of Outer Space, including the 1967 Outer Space Treaty.

The Fletcher School of Law and Diplomacy at Tufts University is one of precious few nongovernmental pages on space law, though it heavily overlaps with the United Nations page.

A few good resources, lawyers and contact sites include:

CUNY Professor Lawrence D. Roberts is the Chair of the American Bar Association's Committee on International Aerospace Law, and has allowed PERMANENT to put up two of his works, a draft of a bill for an Extra-Territorial Claims Registry and an essay on property rights in outer space, as well as being of exceptional professional assistance to PERMANENT. See also the page of the Archimedes Institute at https://www.spacesettlement.com/archimedes which has many good legal links.

James E. Dunstan of Haley, Bader & Potts, in Washington, D.C., is an old acquaintance who has been involved in the space resources community. (Note paper reference and his involvement in LunaCorp.)

Nathan C. Goldman, J.D., Ph.D., lecturer at Rice University and the South Texas College of Law, and an attorney in private practice in Houston, Texas (Note paper reference)

Ward & Partners Lawyers (in Australia) have a Space Law website at http://www.spacelaw.com.au/ which includes an excellent section on "Exploitation of Natural Resources in Space". They argue for participation in an international regime similar to that called for in the Moon Treaty, pointing out that participating parties will have more influence on the evolution of the regime and its rules than will parties who choose not to participate, and that signatories would be "accorded basic exploitative rights that are not accorded to non-parties". The latter seems controversial to me.

The Colorado School of Mines' Center for Space Mining has claimed considerable in-house knowledge and outside colleagues, but they apparently have no website and I've not seen any internet participation by them. Indeed, those who have inquired have not received encouragement as of late 1999. Anyone know what's going on there?

Many of the ideas in this article were provided by public discussions between (in alphabetical order): Andrew Tubbiolo, Bill Mook, BrianF5070, Filip de Vos, Frank Crary, gbaikie, Henry Spencer, Hume, Jim Kingdon, Jon Lennart Beck, Jonathan Goff, Jorge R. Frank, JP Massar, Kelly Starks, Kirk Voelcker, Matt Bille, mlindroo, Robert Bynum, Thomas Clarke, and Tom Billings. An abridged text of these discussions is here.

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