Space Mining, Space Law, and Why No State Can Boldly Go Forth Alone
Philip Morris
University of Amsterdam
Master International & European Law Catherine Brölmann
27 July 2018 12600 Words
ABSTRACT
As space-related technology advances, the prospect of mining activities in space moves closer to being a reality but it must develop in accordance with international law. The major guiding documents for international space law are: the Outer Space Treaty and the Moon Agreement. These treaties grant states the freedom to explore and use space, but forbid national appropriation of celestial bodies. The US and Luxembourg have developed national legislation, which grants property rights to companies interested in mining asteroids based on an interpretation of the Outer Space Treaty that is not sustainable in light of the principle of good faith, in that it interprets the freedoms broadly, but the prohibition narrowly. This thesis examines the
possibilities for developing a regime for space mining that would be in line with the Outer Space Treaty. It reaches the conclusion that the current space law regime would allow for space mining to develop but not in the way the text of current national laws propose.
"The economics of the future are somewhat different. You see, money doesn't exist in the 24th century... The acquisition of wealth is no longer the driving force of our lives. We work to better ourselves and the rest of humanity."
Table of Contents
1. Introduction 7
1.1 Problem Statement 9
1.2 Methodology and Structure 10
2. Corpus Juris Spatialis 11
2.1 Treaties 11
2.1.1 The Outer Space Treaty 12
2.1.2 The Moon Agreement 13
2.2 Customary International Law 14
2.3 General Principles 15
2.3.1 Property Rights 16
2.3.2 Due Diligence 16
2.3.3 Good Faith 18
2.3.4 Province vs Common Heritage 18
2.3.5 Freedom of Use 20
2.4 Case Law 20
2.4.1 Claim to the Moon 21
2.4.2 Claim to an Asteroid 21
2.5 Teachings of Highly Qualified Publicists 22
2.5.1 Narrow Non-Appropriation Principle 23
2.5.2 Broad Non-Appropriation Principle 23
2.6 Summary 24
3. Interpreting the Outer Space Treaty 25
3.1 Article I 25
3.1.1 Ordinary Meaning 26
3.2 Article II 26
3.2.1 Ordinary Meaning 27
3.3 Summary 27
4. Limits on the Freedom of Use and Appropriation 29
4.1 Acceptable Appropriation 29
4.2 Existing System for Managing Common Resources 30
4.2.1 Orbital Slots and the International Telecommunication Union 31
4.3 Summary 33
5. Compatibility of the SPACE Act with International Space Law 34
5.1 The SPACE Act 34
5.2 Summary 38
Bibliography 40 ANNEX 1- TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON
AND OTHER CELESTIAL BODIES 45
ARTICLE I 46 ARTICLE II 46 ARTICLE III 46 ARTICLE IV 47 ARTICLE V 47 ARTICLE VI 48 ARTICLE VII 48 ARTICLE VIII 48 ARTICLE IX 49 ARTICLE X 50 ARTICLE XI 50 ARTICLE XII 50 ARTICLE XIII 51 ARTICLE XIV 51 ARTICLE XV 52 ARTICLE XVI 52 ARTICLE XVII 52
ANNEX 2 - AGREEMENT GOVERNING THE ACTIVITIES OF STATES ON THE
MOON AND OTHER CELESTIAL BODIES 54
ARTICLE 1 54 ARTICLE 2 55 ARTICLE 3 55 ARTICLE 4 56 ARTICLE 5 56 ARTICLE 6 57 ARTICLE 7 58 ARTICLE 8 58 ARTICLE 9 59 ARTICLE 10 59 ARTICLE 11 60 ARTICLE 12 62 ARTICLE 13 62 ARTICLE 14 62 ARTICLE 15 63 ARTICLE 16 64 ARTICLE 17 64
ARTICLE 18 65
ARTICLE 19 65
ARTICLE 20 66
ARTICLE 21 66
1. Introduction
Motivated by the prestige and potential scientific discoveries, in 1969 the United States put the first man on the Moon. As he took the first step on celestial body, Neil Armstrong
proclaimed the bold mission to reach the Moon was "One small step for a man, one giant leap for mankind." When he later planted the US flag it was a symbolic gesture not meant to make a 1
territorial claim. The possibility that it could have been otherwise was eliminated years before. The US is a party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (hereinafter OST) which explicitly forbids any claims of sovereignty over celestial objects. This principle of 2
space law is so important it was reiterated and elaborated on in the less ratified, and therefore less authoritative, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement). The OST designates outer space as "the province of all mankind" 3 4
and "not subject to national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means." Over the course of its Apollo program, the US put twelve 5
men on the Moon and brought back 342 kilograms of samples for scientific study, but this was 6
not considered an instance of national appropriation. The scientific and technological
advancements that resulted from the US and other national space programs were widely shared and noticeably contributed to the betterment of all mankind. More recently private companies have looked to the Moon and asteroids not as objects of scientific interest, but as potential treasure troves of astronomical profits thanks to the resources they contain. According to the CEO of the asteroid mining company Planetary Resources, a 30-meter long asteroid might contain as much as $50 billion worth of platinum. Such an asteroid is on the small end of the 7
1 NASA, "July 20, 1969: One Giant Leap For Mankind," 2017, Accessed July 27 2018,
https://www.nasa.gov/mission_pages/apollo/apollo11.html
2 Entered into force on 10 October 1967. Text included in Annex 1. As of July 2018, it has been ratified by 107 States making it the most widely accepted of the UN outer space treaties.
3 Entered into force on 11 July 1984. Text included in Annex 2. As of July 2018, only 18 states have ratified the Moon Agreement which does not include any of the major space-faring nations, but does include some members of the European Space Agency (ESA).
4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Article 1
5 Outer Space Treaty, Article 2
6 NASA, "NASA Facts," 1995, Accessed 26 July 2018,
https://www.nasa.gov/centers/johnson/about/factsheets/lunarsamples.html
7 Irene Klotz, "Tech Billionaires Bankroll Gold Rush To Mine Asteroids," Reuters 2012, Accessed 26 July 2018,
https://www.reuters.com/article/us-space-asteroid-mining/tech-billionaires-bankroll-gold-rush-to-mine-asteroids-id USBRE83N06U20120424
scale as they can have a radius of several hundred kilometers and their value would scale accordingly.
In 2015 the US had another space-related first, this time motivated by large financial returns, they passed the Space Resource Exploration and Utilization Act of 2015 (SPACE Act) which grants private property rights over space resources to any US entity that obtains them. 8
Luxemburg then passed a similar law to encourage the development of its own national space resource mining industry. Private companies need to make massive financial investments in 9
order to mine space resources and these laws are meant to provide them with the legal certainty over their right to future profits. According to the US Congress the purpose of the SPACE Act "is to establish a legal framework to govern property rights of resources obtained from asteroids enabling this new industry and providing clarity for future entrepreneurs." However, the 10
national laws do not provide the certainty their drafters hoped under international law, and if the national legislation was implemented to avoid fulfilling an international obligation, then they will trigger the international responsibility of the State. The US SPACE Act will serve as the 11
main object of examination in this thesis, because the US has the most comprehensive legal framework for space activities, and because other States tend to follow their example. The 12
example being set here is that the future exploration of space will be accompanied with commercial exploitation.
International law functions to guarantee States their independence, but it also increases their interdependence. In developing on their own the mechanisms to govern objects beyond 13
the jurisdiction of any one State, the US and Luxembourg are taking a step back from the
international community. The major issue for this thesis is the interpretation of the prohibition on "national" appropriation, as only being a ban on State appropriation. Under the hypothesis that such an interpretation would be a violation of the VCLT, this thesis would like to answer the questions:
8 Text included in Annex 3
9 An English translation of the official French text of the latest version of the law is available at
http://www.spaceresources.public.lu/content/dam/spaceresources/news/Translation%20Of%20The%20Draft%20 Law.pdf, last accessed 26 July 2018
10 US Congress, "House Report. 114-153 - SPACE RESOURCE EXPLORATION AND UTILIZATION ACT OF 2015," Accessed 26 July 2018,
https://www.congress.gov/congressional-report/114th-congress/house-report/153/
11 ICJ, Nuclear Tests Case (Australia v France) (Judgement) [1974]
12 Arindrajit Basu and Arthad Kurlekar, "Highway to the Danger Zone: United States Legislative Framework Regulating the Commercial Space Sector," Astropolitics, 14:1 (2016): 45
13 Alain Pellet. "The definition of responsibility in international law." The Law of International Responsibility (2010): 10.
Does international law allow the US and Luxembourg to grant rights to their nationals to claim outer space resources?
And if not:
Can national space mining laws give rise to international responsibility?
1.1 Problem Statement
The future looking companies interested in mining outer space resources are working on decades long timelines because they are concerned with society’s future needs. Metals rare on Earth exist in abundance throughout the asteroid belt. A robust space mining industry would not only bring back raw materials, but would also alleviate some of the environmental damage caused by traditional mining here on Earth. Space mining has the potential to introduce large quantities of currently rare material into the global market which will eventually drive down commodity prices. This will not be a benefit for everyone though. In many developing countries the mining industry makes up a significant portion of their GDP and this will negatively impact their economic stability. The United Nations Office for Outer Space Affairs (UNOOSA) 14
conducts training workshops so developing countries can benefit from advances in space science, but developing countries are severely underrepresented among spacefaring states and the
15 16
likelihood that they would be able to take part in space mining activities on their own before the price drop is non-existent. Within the UN Committee on the Peaceful Uses of Outer Space, some delegates have expressed their concern that unilateral space mining could be a threat to peace on Earth. 17
In order for mining in space to develop, commercial companies need the potential to earn reasonable profits and a stable legal environment. National legislation for space mining creates 18
14 Sudeshna Ghosh Banerjee et. al., The Power of the Mine: A transformative Opportunity for Sub-Saharan
Africa (The World Bank, Washington DC: 2015): 2
15 UNOOSA, "Roles and Responsibilities" 2018, Accessed 26 July 2018,
http://www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html
16 Timiebi Aganaba-Jeanty, "Cosmopolitan Approaches to International Law: Finding The Right Lens to View The Freedom of Outer Space," PhD diss., McGill University Montreal, Quebec, (2016)
17 UN, "Report of the Committee on the Peaceful Uses of Outer Space Sixtieth session (7-16 June 2017)", (2017): 9
18 Ketan Mukhija. "Crossing the Infinite Frontier: An Analysis of Property Rights Regime in Corpus Juris Spatialis." In Earth & Space 2006: Engineering, Construction, and Operations in Challenging Environment, pp. 1-8. 2006.
some certainty in the domestic sphere but it also creates doubt in the realm of international law. Russia and Brazil have spoken out against the national legislation for the lack of international consultation, but they have not gone so far as to claim it was an illegal act. An alternative 19
approach to the unilateral development of a legal framework, and one that would ensure legal certainty both domestically and internationally, is the development of an international regime for the management of space mining activities as given in Article 11 of the Moon Agreement.
1.2 Methodology and Structure
Research for this thesis began with an extensive literature review which found several ambiguities exist within the OST that have not been sufficiently resolved with time (Does the freedom to use outer space included commercial mineral exploitation? Does the ban on national appropriation apply to individuals?). These ambiguities appear because different legal scholars apply different methods of interpretation with undisclosed biases. This thesis makes an effort to produce a non-biased interpretation of the treaty following the principles of the VCLT, to determine the relationship of the national legislation on mining outer space resources with the foundation of the international corpus juris spatialis. This involved a thorough review of relevant international law, primarily sourced from the UNOOSA. The analysis of the SPACE Act in light of the international law was made supported by the legislative records of the US Congress. The SPACE Act refers to "asteroid resources and space resources" the OST which makes no
distinction so neither will this thesis.
This thesis will proceed in the following order. Chapter 2 provides the sources of space law relevant for space mining endeavors including the space treaties, customary international law, general principles of law, and case law. Chapter 3 provides an interpretation of Articles I and II of the OST. Chapter 4 focuses on the limits of acceptable uses of space resources found in State practice and provides a comparison to other acceptable uses in areas that are a part of mankind's common heritage. Chapter 5 examines the possibility for SPACE Act to trigger international responsibility to answer the second question. Finally, this thesis will provide its conclusion in Chapter 6.
19 Frans von der Dunk, "Private property rights and the public interest in exploration of outer space."
2. Corpus Juris Spatialis
Article III of the OST makes it so the prevailing rules of international law will apply in space where they are not overridden by leges speciales. This chapter contains an overview of the corpus juris spatialis relevant to the mining of outer space resources. Its organization is based upon the sources of international law found in Article 38 of the Statute of the International Court of Justice. The first section will present the relevant articles of the OST, and the Moon 20
Agreement. Next will come a brief examination of the customary international law that had developed regarding space activities. The third section will detail the general principles of law particularly those generated by the space treaties and custom. No cases have yet taken place directly related to space mining, but a relatively small amount of legal cases have involved the non-appropriation principle, they will be discussed in the fourth section. In contrast, a large number of legal scholars have written on the potential issues surrounding space mining and the section discussing them will close the substantive part of this chapter. They can largely be classified into two camps, those that favor a narrow interpretation of the non-appropriation principle that would allow for the individual commercial exploitation of resources, and those who see the principle as a broad ban on such activities.
2.1 Treaties
There are five main multilateral space treaties governing the use of outer space that were concluded between 1967 and 1979 as part of the UN's effort to prevent space law from
developing purely based on the will of the space-faring nations, they are the OST, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement. 21
They were negotiated in the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and all but the Moon Agreement have been widely ratified. The US and Luxembourg are parties to the OST, but not the Moon Agreement. The most relevant treaties 22
for this thesis are the OST and the Moon Agreement because they include provisions that address outer space resources. COPUOS drafted the treaties through the consensus of the participating
20 UN, Statute of the International Court of Justice, 18 April 1946, Accessed 26 July 2018,
http://www.refworld.org/docid/3deb4b9c0.html
21 The text of all UN Space treaties are available at
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html, last accessed 26 July 2018
22 COPUS, "Status of International Agreements relating to activities in outer space as at 1 January 2018," Accessed 26 July 2018,
member which granted each of its members a veto right over articles of the treaties meaning that the final text was acceptable to a broad spectrum of States. No reservations were made to either of the treaties. The US has been a member of COPUOS since its inception and heavily shaped the treaties in tandem with the USSR. Luxembourg only joined in 2014, after private 23
companies expressed serious interest in space mining. 24
Of special note is that throughout the treaties the regime of international responsibility for space activities takes on a special character as all activity in space can be attributable to one or more States because "a State is responsible for the activities over which it has the opportunity to exercise legal control" even when carried out by private firms or individuals. 25
2.1.1 The Outer Space Treaty
The Outer Space Treaty is the foundation of outer space law, with some legal scholars 26
arguing that it now represents a codification of customary international law. If nothing else it serves as the basis of all subsequent space treaties, including the Moon Agreement which was meant to clarify the broad principles laid out in the OST. At the time the treaty was negotiated all activities in space were too prohibitively expensive to be carried out by any entity but States and this shaped the language used in the treaty. 27
Of the fifteen articles of the Outer Space Treaty, Articles I and II are the vaguest and most subject to interpretation, they are also the most relevant for determining the legal status of space mining. Article I opens with the statement that "The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries... and shall be the province of all mankind" before declaring that "there shall be free access to all areas" and "freedom of scientific investigation". Article II places a restriction on the freedoms granted in Article I as it declares that "Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of occupation, or by any other means." Part of the cause of ambiguity in the OST is
23 Timiebi Aganaba-Jeanty, "Cosmopolitan Approaches to International Law: Finding The Right Lens to View The Freedom of Outer Space," PhD diss., McGill University Montreal, Quebec, (2016): 44
24 COPOUS membership history can be found at
http://www.unoosa.org/oosa/en/ourwork/copuos/members/evolution.html, last accessed 26 July 2018
25 Julian Hermida, Legal basis for a national space legislation, (Vol. 3. Springer Science & Business Media, 2004); 26-27
26 Elliot Reaven, "The United States Commercial Space Launch Competitiveness Act: The Creation of Private Space Property Rights and the Omission of the Right to Freedom From Harmful Interference," 94 Wash. U.
L. Rev. 238 (2016): 5
27 Fabio Tronchetti, "Legal Aspects of Space Resource Utilization" in Handbook of space law, Frans von der Dunk ed. (Edward Elgar Publishing, 2015): 777
that it provides no definitions for the objects it governs or the concepts it uses, which has left the terms of "use", "the province of all mankind", and "national appropriation" open to diverging interpretations.
Other articles of note are: Article III, requiring space activities be carried out in accordance with international law, in the interest of maintaining peace and promoting
international cooperation; Article IV, designating that space be used exclusively for peaceful purposes; Article V, declaring astronauts as the envoys of mankind; Article VI, designating States responsible for national activities in outer space, and Article IX, which requires States to undertake international consultations when activities by it or its nationals might cause harmful interference to another State's activities in space. The theme of these articles and the treaty as a whole is that space is an arena for international cooperation.
2.1.2 The Moon Agreement
As stated previously, the Moon Agreement is largely an elaboration on the principles laid out in the OST, its new contributions to 28 corpus juris spatialis include the designation of space
as the "common heritage of mankind" and the call for the development of an international regime for the management of space resource extraction. The Moon Agreement is generally considered a failed treaty because it has so few parties, but the text of the agreement was unanimously
adopted by the UNGA in its resolution 34/68 and efforts are still made to get more states to join. Inclusion of the common heritage principle is often cited as the reason so few states have
29
ratified the treaty.
While most of the articles of the Moon Agreement have analogs in the OST, Article 11 is unique in that it directly addresses the natural resources found in space as opposed to celestial bodies as a whole. It designates space resources as being the common heritage of mankind incapable of becoming private property and mandates that an international regime is established to govern their exploitation "as such exploitation is about to become feasible." One controversy 30
surrounding this article comes from the purpose of the international regime being to ensure equitable sharing of the benefits derived from natural resources. The mistake is in interpreting 31
28 Aganaba-Jeanty, "Cosmopolitan Approaches to International Law," 112
29 COPUS, "Joint Statement on the benefits of adherence to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 by States Parties to that Agreement," Accessed 26 July 2018,
http://www.unoosa.org/pdf/limited/c2/AC105_C2_2008_CRP11E.pdf
30 Article 11(5)
31 Ram Jakhu, and Maria Buzdugan, "Development of the natural resources of the moon and other celestial bodies: economic and legal aspects," Astropolitics 6, no. 3 (2008)
"equitable" as synonymous with "equal" when really it calls for balancing the interests of
developing countries and those that contributed to the endeavor. The commercial use of natural 32
resources is distinguished from their scientific use by Article 6, which grants the right to collect samples for scientific investigations and allows those samples to remain at the disposal of the State that collected them.
Interest in the Moon Agreement has increased in recent years. The last eight States to become parties to the treaty did so after 2001, and most recently it was joined by Armenia in January 2018. A possible explanation for this trend is that space mining is on the cusp of being commercially viable and authorizing exploitation under the Moon Agreement's international regime will strengthen the claim to property rights of less powerful States. 33
2.2 Customary International Law
Customary law is an important consideration here, because if the space mining industry establishes itself in a way prohibited by the OST, States will be able to claim the meaning of the treaty was modified through subsequent practice. The rules of customary international law can be hard to precisely nail down without a precedent-setting case. Article 38.1(b) of the Statute of the ICJ provides that custom is "a general practice accepted as law". The ICJ has further refined the conditions to be the objective condition of "settled practice" and subjective condition of "opinio juris sive neccessitatis". Determining the customary rules of space law is made more difficult 34
by it being a relatively young field with few participants; only 16 States and the ESA are capable of launching their own vehicles into space. Despite these hurdles it has been argued that the principles of the OST have entered the realm of custom, particularly Article 2. At no time in the 35
history of space exploration has a State claimed jurisdiction over a celestial body or the resources they contain, beyond scientific samples. 36
The US supports the theory on the formation of a custom that all specially-affected States must support a rule in order for it to become custom. A consequence of having only a small 37
number of space-faring States is that only a small number of States qualify as specially-affected.
32 Jakhu and Buzdugan, "Development of the natural resources," 230
33 Ram Jakhu, Joseph Pelton, and Yaw Otu Mankata Nyampong, Space Mining and Its Regulation (Springer, 2016): 129
34 Nicaragua vs USA, ICJ, 1986
35 Basu and Kurlekar. "Highway to the Danger Zone," 48
36 John Sprankling, The international law of property (OUP Oxford, 2014): 185
37 Kevin Heller, "Specially-Affected States and the Formation of Custom," American Journal of
The status of specially-affected States in the formation of custom is far from settled, but when 38
the US, with its long history of shaping space law, is included among them it is more than likely that the rules they set will become custom. That there now exist national laws that go against the non-appropriation principle does not diminish its status as the current customary rule because "States sometimes attempt to modify a prohibitive customary rule by engaging in practice that violates it." To date, only the US and Luxembourg have such laws. Though one is 39
independently a space-faring nation and the other's space capabilities rely on the ESA, they do not represent a diverse enough grouping of States for their legislature to be considered
widespread and representative practice with the power to modify a prohibitive custom. 40
Fabio Tronchetti makes the argument that Article 2 and the non-appropriation principle should be considered custom. Tronchetti makes the point that non-appropriation has a special character because the concept is a fundamental basis for the entire system of space law. 41
Evidence to support the customary status of Article 2 is found in the fact that numerous claims to celestial objects have been dismissed citing the non-appreciation principles, and its frequent appearance in space related UNGA Resolutions and legislation. Statements can count as State 42
practice, so repeated declarations can shape custom even without physical actions. The 43
principle was first included in UNGA Resolution 1721 (XVI) of 20 December 1961, and again in Resolution 1962 (XVIII) of 13 December 1963 in nearly the same wording as was ultimately used in the OST four years later.
2.3 General Principles
There are several general principles of law that are relevant to the interpretation and application of the OST and the development of the space mining industry. The first principles regard property rights and have a long history stretching back to the era of natural law. The treaty related principles of due diligence and good faith developed more recently with the development of nation-states. The other principles related to space as a common area and its acceptable uses developed after mankind entered space.
38 Ibid., 5
39 Heller, "Specially Affected", 22 40 Ibid., 44
41 Fabio Tronchetti, "The Non-Appropriation Principle Under attack: Using Article II of the Outer Space Treaty in Its Defence", in Proceedings of the Fiftieth Colloquium on the Law of Outer Space (2007): 2
42Tronchetti, "The Non-Appropriation Principle Under attack," 5 43 Heller, "Specially Affected", 22
2.3.1 Property Rights
In order for private property rights to exist there needs to be a State capable of protecting those rights. It is possible to take possession of a rock found in nature, but an individual's 44
ownership over that rock would only last as long as others could be prevented from taking the rock for themselves. State power has replaced the need for individual strength to protect property rights where the acceptable methods for acquiring those rights are provided by law. Modern societies are said to be founded on "an underlying assumption that citizens had a right to acquire property". For the State to exercise its protective power it must have jurisdiction over the area 45
where the potential property lies unowned. Objects in areas beyond any State's jurisdiction are res communis and cannot be appropriated by States or private persons, though they may make use of them. 46
The OST and the Moon Agreement both make clear that outer space is beyond the jurisdiction of any one state, and thus res communis, with the OST making the benefits from space exploration "the province of all mankind" and the Moon Agreement designating celestial 47
objects and their natural resources "the common heritage of mankind". The two concepts have 48
many similarities yet are different enough that including one over the other can leave a treaty DOA.
2.3.2 Due Diligence
The principle of good neighborliness supports the peaceful coexistence of States and is expressed as a duty of States to diligently prevent their territory from being used in a way that harms another. States show due diligence when they implement and effectively enforce 49
domestic laws that represent the international minimum standard to carry out of their customary or treaty based obligations. States that fail to meet the content of the commitment to show due 50
diligence whether "intentionally, maliciously, or as a result of culpable negligence" can be held 51
responsible for their failure. A system of absolute sovereignty for States would prevent
44 Virgiliu Pop, "Appropriation in outer space: the relationship between land ownership and sovereignty on the celestial bodies," Space Policy 16, no. 4 (2000): 278
45 Sprankling, The International Law of Property, 223
46 Jijo George Cherian and Job Abraham, "Concept of Private Property in Space-An Analysis," J. Int'l Com.
L. & Tech. 2 (2007): 216
47 Outer Space Treaty, Article 1 48 Moon Agreement, Article 11
49 Kulesza, "Due Diligence in International Law," 167 50 Ibid., 32
international responsibility for domestic actions, but in modern international law sovereignty is not absolute, it is limited where the law obliges the interests of other States be taken into consideration. This is the case even for the exploitation of natural resources within a State’s 52
territory when it generates pollution capable of causing transboundary harm. Article I of the 53
OST makes clear that in space the interests of all nations must be a consideration for all activities and so should also be a part of domestic space legislation.
International law does not directly affect the actions of individuals, instead the
requirement to show due diligence reflects the State’s responsibility to prevent those under its jurisdiction from causing harm to another State. In the 54 Caroline case dating back to the US
Civil War, the US brought a suit against Great Britain for supplying a warship to the Confederate States. The US argued then that the standard of due diligence was "proportional to the size of the object in question and to the dignity and power of the party providing it." This definition was 55
used to argue that because of Great Britain’s power and wealth there was a reasonable
expectation that it could prevent even private parties from infringing its international obligations, here the respect for the territorial integrity of another State. The US now finds itself on the other side of the table with regards to space mining. On the Earth and in space the US is the dominant player and instead of the situation being a failure to prevent an infringement of an obligation, the US is actively encouraging nationals to risk infringement.
Normally the level of the due diligence standard is proportional to the potential damage caused by failing to act diligently. In space, the obligation of the State goes further because 56
Article VI of the OST places on them strict liability for the activities their nationals. Providing 57
planning, direction or support for individuals with the intention to violate international law is not enough for a State to be internationally responsible if the violation is never carried out, so until 58
the space mining companies actually commence their mining operations the US and Luxembourg will only be responsible for their own failure to implement the OST with due diligence and in good faith. When space mining does take place, the standard of due diligence will be raised by the amount harm caused to the space environment and the global economy.
52 Kulesza, "Due Diligence in International Law," 58 53 Ibid., 168
54 Ibid., 48 55 Ibid., 61 56 Ibid., 199
57 Armel Kerrest, "Outer Space as International Space: Lessons from Antarctica," Science Diplomacy (2011): 134
2.3.3 Good Faith
Good faith is a guiding principle of law should be present throughout the negotiation, interpretation, and eventual application of a treaty. The principle has limited practical application in international law because it is difficult to asses the motivations of a State. Still, should a 59
State engage in behavior that is prohibited by a good faith interpretation, it can be considered an abuse of rights, which the State would be responsible for. 60
The first set of rules for the interpretation of a treaty is the treaty itself, whether those instructions are explicit or implied. The OST does not have explicit instructions for its 61
interpretation so the VCLT provides the default rules for interpretation. Criteria to ensure these rules are themselves applied objectively in good faith include: fairness and reasonableness of the result; consistency; and regard for the meaning of the term and the object and purpose of the treaty. 62
2.3.4 Province vs Common Heritage
A common thread throughout all of space law is that the use of outer space be for the betterment of mankind. The sentiment was expressed repeatedly by the leaders of the US, 63
USSR, and the UNGA in the years between the launch of Sputnik and the signing of the OST.64
The exact form those benefits were meant to take were left vague until the introduction of the province of mankind and the common heritage of mankind principles. Broadly speaking, space law scholars accept that the province of mankind relates to the results of activities carried out in space, and the common heritage of mankind relates to the resources found in space. Mankind 65
benefits under the province of mankind through the sharing of technological and scientific developments. The common heritage of mankind adds international management and economic profit sharing to the list of expected benefits. The sub-principles found in the common heritage 66
of mankind can be summarized as: 1. Non-appropriation
59 Steven Reinhold, "Good Faith in International Law," UCLJLJ 2 (2013): 40 60 Ibid., 49
61 Ibid., 12 62 Ibid., 294
63 Carl Christol, "Important concepts for the international law of outer space." Proc. on L. Outer Space 40 (1997): 75
64 Ibid.
65 Timiebi, "Cosmopolitan Approaches," 61
66 Jennifer Frakes, "The Common Heritage of Mankind Principle and Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise," Wis. Int'l LJ, 21 (2003): 412
2. Common management (establishing an international body) 3. Benefits sharing
4. Use only for peaceful purposes
5. Preservation of the environment for future generations
Developed countries see the common heritage principle as being opposed to capitalism and opposed its inclusion in the Moon Agreement because of potential conflicts with future
commercial interests. Indeed on Earth, when UNESCO designates a natural or manmade site 67
part of the natural or cultural heritage of mankind it brings a duty for States to protect and conserve the area. The US has not joined the Moon Agreement because of its inclusion of the 68
common heritage principle, and developed its own version of the United Nations Convention on the Law of the Sea (UNCLOS) for similar reasons. 69 70
Arthur J. Goldberg, the US ambassador to the UN when the OST was negotiated, left open the possibility that shared benefits of Article I might include profits when he testified before the Committee on Foreign Relations of the U.S. Senate. He stated that it was negotiated "so that all countries can profit from the explorations that are taking place in space", but also 71
that it was a "treaty of general principles recognizing that we must develop specific use
arrangements for specific uses." From this, it can be taken that States not a party to the Moon 72
Agreement have not automatically freed themselves from the elements of the common heritage principle they disagreed with but instead must deal with the ambiguity of the OST.
Both the province of mankind and the common heritage of mankind can be seen as creating rights for the collective entity of "mankind". Those rights can only be used by a single 73
State insofar as mankind has granted them the right to do so. Indeed, in their joint statement Austria, Belgium, Chile, Mexico, The Netherlands, Pakistan, and the Philippines make the point that the common heritage of mankind principle in the Moon Agreement is the only provision of the outer space treaties that allows for the possibility of resource exploitation. In the absence of 74
67 Ibid., 433
68 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 69 Entered into force 10 December 1982. Text can be found at
http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf, last accessed 26 July 2018 70 Barbara Ellen Heim, "Exploring the last frontiers for mineral resources: A comparison of international law regarding the deep seabed, outer space, and Antarctica," Vand. J. Transnat'l L. 23 (1990): 835
71 United States. Congress. Senate. Committee on Foreign Relations, Treaty on outer space. Hearings,
Ninetieth Congress, first session, on Executive D, 90th Congress, first session, (Washington, U.S. Govt. Print. Off., 1967): 7
72 Ibid., 12
73 Stephen Gorove, "Concept of Common Heritage of Mankind: A Political Moral Or Legal Innovation,"
The San Diego L. Rev., 9 (1971): 390 74 COPUS, "Joint Statement," 5
explicitly being given the right, its existence must be inferred which is not reasonable in the case of space resources given that on Earth, even without using either concept, tribunals and soft law documents favor the collective management of shared resources and sharing the benefits they offer. 75
2.3.5 Freedom of Use
Areas considered res communis like outer space and the high seas are free to be used by all States in a manner that does not interfere with its legitimate use by others. Legitimate 76
unilateral uses of the high seas by States include navigation, commerce, and fishing, however, mining the deep seabed, which would permanently change the local environment and the resources it contains, is governed by an international regime under UNCLOS managed by the International Seabed Authority (ISA). Much of the debate surrounding the limits on the freedom of use in space is not concerned with the space environment, but hinges on the limits of
commercial use. Subsequent practice has shown that the commercial use of some space 77
resources is acceptable, like orbital slots and solar radiation for satellites, but the extraction of physical resources has so far only been done for scientific purposes. Orbital slots and solar radiation are non-exhaustible resources, like shipping routes on the high seas, and can be freely used by all States with proper coordination. Physical resources are exhaustible so continuing the analogy with the high sea implies that they can not be used commercially except under an international regime.
2.4 Case Law
Though there has yet to be an international legal case on the appropriation of space resources there have been a handful of national cases relating to individual claims of outer space celestial bodies. Before and after the OST entered into force, government authorities in several States have brought fraud charges against individuals selling plots of land on the Moon and other celestial bodies. Two recent and notable cases come from China and the US and will be 78
detailed in this section. In both cases, it was found that appropriation of celestial bodies, or parts thereof, was not was not possible because of the non-appropriation principle.
75 Kulesza, "Due Diligence in International Law," 177 76 Sprankling, Law of Property, 175
77 H.L. van Traa-Engelman, Commercial utilization of outer space: law and practice (Martinus Nijhoff Publishers, 1993): 21
78 Virgiliu Pop, Who owns the moon?: extraterrestrial aspects of land and mineral resources ownership, (Vol. 4. Springer Science & Business Media 2008): 17-18
2.4.1 Claim to the Moon
For three days in September 2005, Beijing Lunar Village Aeronautics Science and Technology Co Ltd (Beijing Lunar) sold acres of land on the Moon before its business license was revoked by the Beijing Administration for Industry and Commerce (BAIC). Beijing Lunar claimed that the OST did not mention corporations or individuals so they were exempt from the prohibition on appropriation. The BAIC considered this a misinterpretation of the treaty which was meant to rule out any ownership of celestial bodies, and further, because Beijing Lunar was operating for profit they were in violation of the treaty's benefit sharing provision. Beijing 79
Lunar Village filled two appeals to have its license reinstated. Both times the courts agreed with BAIC's interpretation of the OST as being a prohibition on all claims of ownership of celestial bodies. 80
Beijing Lunar Village felt confident in the legality of their venture because they bought their plots from the US entrepreneur Denis Hope's Lunar Embassy as an authorized reseller, but 81
Hope also has right to the Moon. In 1980 Hope sent a claim to the Moon to the UN General Assembly, The US Government, and the Russian Government, none bothered to reply. Hope took their lack of protest as the basis for the establishment of a historic title and a right to sell plots on the Moon. This is a mistake of law since the absence of protest is only relevant when it can be legitimately expected. 82
2.4.2 Claim to an Asteroid
In 2001, NASA landed its NEAR Shoemaker space vehicle on the surface of the minor planet 433, Eros. One year prior Gregory W. Nemitz filed claims with the Archimedes Institute, 83
a not-for-profit organization that maintains a space private property rights registry, and the 84
California Secretary of State in an effort to assert property rights over Eros. Nemitz estimates the value of Eros to be $0.5 quintillion dollars, based a low estimate of its mass being 5% iron, with
79 People's Daily Online, "'Real estate' agent loses bid to sell land on moon," 2005, Accessed 26 July 2018,
http://en.people.cn/200610/21/print20061021_314010.html
80 Tronchetti, "The Non-Appropriation Principle", 8 81 People's Daily Online, "'Real estate"
82 Pop, Who owns the moon?, 16-17
83 NASA, "NEAR Shoemaker," 2018, Accessed 26 July 2018,
https://solarsystem.nasa.gov/missions/near-shoemaker/in-depth/
84 The Archimedes Institute, "The Archimedes Institute," Accessed 26 July 2018, http://www.permanent.com/archimedes-institute.html
.005% contamination of platinum. Following the NEAR Shoemaker landing, Nemitz sent 85
NASA an invoice for $20 in storage and parking fees. This began an exchange of letters between Nemitz, NASA and the US State Department in which the government agencies denied the validity of Nemitz claim for having no foundation in either national law, or international law. 86
NASA identified Nemitz intention in filing a claim as "calling attention to the absence of private property rights on celestial bodies" with the "view that existing international treaties should be interpreted or amended to remedy this situation." In its short reply, the State Department stated 87
clearly that "private ownership of an asteroid is precluded by Article II of the [Outer Space Treaty]". Nemitz filed a federal complaint in 2003 which was dismissed for a lack of legal basis 88
on which to stake his claim. There the judge wrote "neither the failure to the United States to ratify the [Moon Agreement] nor the United States ratification in 1967 of the [Space Treaty] created any rights in Nemitz to appropriate private property rights on asteroids." 89
In Nemitz saga, three organs of the US reached the conclusion that claims of private property rights could not be recognized at the time on the basis of national, or international law. Since the passing of the SPACE Act, there is now a national basis for private claims, but no amendments have been made to the OST, and so nothing has changed with regards to international law.
2.5 Teachings of Highly Qualified Publicists
As the Nemitz saga shows, modern claims of property rights over outer space resources tend to rest on the fact that the OST does not explicitly mention individuals. While it is only recently that States (the US, and Luxembourg) have explicitly supported this interpretation, legal scholars have been split on how to interpret the treaty's silence since its inception. The arguments can be split into two camps, those who interpret Article II narrowly so it is only a prohibition on State appropriation, and those who interpret it broadly so that the prohibition includes
individuals.
85 Eros Project, "Eros Facts," Accessed 26 July 2018, http://www.erosproject.com/erosfact.html 86 Eros Project, "Case in Federal Court," Accessed 26 July 2018,
http://www.erosproject.com/courtcase.html
87 Letter dated 9 April 2001 to Gregory Nemitz by Edward A. Frankle General Counsel, NASA,
http://www.erosproject.com/exhibit02.html
88 Letter dated 15 August 2003 to Gregory William Nemitz by Ralph L Braibanti, Director, Space and Advanced Technology, United States Department of State, http://www.erosproject.com/exhibit01.html
2.5.1 Narrow Non-Appropriation Principle
Shortly after the OST was drafted it was written that "the [Outer Space] Treaty in its present form appears to contain no prohibition regarding individual appropriation .... Thus, at present an individual acting on his own behalf or on behalf of another individual or a private association or an international organisation could lawfully appropriate any part of outer space, including the moon and other celestial bodies." Proponents of this interpretation see legal 90
loopholes in the wording of Article II that either allows individuals to bypass the appropriation ban, or that applies the ban is only for whole bodies but not extracted parts. These scholars 91
proceed largely on the belief that whatever is not explicitly prohibited is allowed under international law. These supposed loopholes were meant to be eliminated by the Moon 92
Agreement, but because it has such a low number of ratifications, they are still open to be exploited. 93
2.5.2 Broad Non-Appropriation Principle
Those who interpret Article II as a prohibition for all take the view that the extension from States to private parties is implicit based on the treaty as a whole. As stated earlier, legal 94
property rights exist through State sovereignty, but that sovereignty does not extend to space beyond the people and objects placed there. During the OST negotiations the USSR wanted an 95
outright ban on private activity in space, but reached a compromise with the US that allowed private activities in space under strict State control to ensure their adherence to international law.
Regarding non-appropriation principle, the Belgian and French delegates raised in their view
96
the prohibition was for sovereignty and property rights, and this prompted only a limited debate, but afterwards no states submitted reservations to the treaty contradicting this view. Most legal 97
scholars writing on the non-appropriation principle reach the conclusion that it should be interpreted broadly to include individuals and the resources found in celestial bodies. 98
90 Gorove,"Common Heritage," 42
91 Lynn Fountain, "Creating momentum in space: ending the paralysis produced by the common heritage of mankind doctrine," Conn. L. Rev. 35 (2002): 1753.
92 Reaven, "The United States," 6
93 Mukhija,"Crossing the Final Frontier," 1 94 Pop, Who owns the moon?, 64
95 Freeland and Jakhu, "Article II," 53
96 Kerrest, "Outer Space as International Space," 134 97 Pop, Who owns the moon?, 64-65
2.6 Summary
From this overview of the sources of law it is possible to see that most do not support the conclusion that the unilateral exploitation of space resources by a State are permitted. The only support for that outcome comes from a minority of scholars who base their conclusion on an interpretation of Articles I and II of the OST that goes beyond the ordinary meaning of the words in the text. Should the Moon Agreement gain significantly more parties the misinterpretations will cease to be an issue. As it stands the OST is the only international law instrument addressing space resources that binds the US and Luxembourg, so interpreting the ordinary meaning of its relevant articles becomes a necessary exercise.
3. Interpreting the Outer Space Treaty
Legal documents are not meant to contain "hidden" meanings yet there exists a possibility that the literal meaning of terms might lead to an absurd interpretation given the object and purpose of a legal document. Every line of the OST preamble either references the 99
collective entity of mankind, the importance of peace and international cooperation, or references another legal document with that aim, including three GA resolutions and the UN Charter. The 100
treaty is meant to contribute to developing scientific and legal international cooperation with regards to "the exploration and use of outer space". Based on a close reading of the preamble 101
the object and purpose of the OST is to prevent space from becoming another arena for political competition between States, instead its development is meant to be in "the common interest of all mankind". In then follows that interpreting the Articles of the treaty should be done in a 102
manner that has in mind the interests of every State and when an interpretive choice is to be made the option least likely to disturb international peace should be chosen. 103
3.1 Article I
The object and purpose of Article I of the OST is to give States the freedom to explore space. However, that freedom is not unlimited and comes with its own obligations identified by the use of the term "shall" which is synonymous with must . First, there is the benefits sharing 104
obligation, "The exploration and use of outer space… shall be carried out for the benefit and in the interests of all countries…and shall be the province of all mankind." Then there is freedom 105
of access, "Outer space … shall be free for exploration and use by all States … and there shall be free access to all areas of celestial bodies." Finally, there is scientific freedom and an 106
99 Chang-fa Lo, Treaty Interpretation Under the Vienna Convention on the Law of Treaties: A New Round
of Codification (Springer, 2017): 4
100 UNGA Resolutions, 110 (II) "Measures to be taken against propaganda and the inciters of a new war", 1884 (XVIII) "Question of general and complete disarmament", 1962 (XVIII) "Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space" which outlines the principles of the treaty including consideration of mankind and the restriction on use for peaceful purposes.
101 Preamble para. 4 102 Preamble para. 2
103 Definitions come from the Merriam–Webster dictionary. Accessed online at
https://www.merriam-webster.com/, last accessed 26 July 2018
104 Germana D’Acquisto, and Stefania D’Avanzo, "The role of SHALL and SHOULD in Two International Treaties," Critical Approaches to Discourse Analysis Across Disciplines 3, no. 1 (2009): 36-45
105 Article I para. 1 106 Article I para. 2
obligation for cooperation, "There shall be freedom of scientific investigation in outer space … and States shall facilitate and encourage international cooperation in such investigation." Key 107
terms that can lead to divergent interpretations are "use", "benefit", and "celestial bodies".
3.1.1 Ordinary Meaning
Presented without any exemptions "use" must be taken to mean all possible uses for space are permitted by Article I which includes commercial exploitation. However, the use of 108
space is limited by the need to prevent an abuse of rights. This is supported by the requirement 109
that the use made of outer space must benefit all countries.
How the exploration and use of space is to "benefit" all countries, is left undefined in the treaty, and so it too should be taken in its broadest sense, which allows for differentiated
benefits. It is reasonable for the amount benefits vary based on the level of their involvement in the activity, with the most benefits going to the country responsible for its execution. It is also reasonable for countries to receive different types of benefits from monetary gain, to the development of intellectual property, to general scientific knowledge. 110
Much like the previous terms "celestial bodies" is not explicitly defined, however, based on its use it becomes clear that an exact definition is not necessary as it is used as a catchall term. It is only ever used in the phrase "outer space, including the moon and other celestial bodies" where it adds clarity to the area of applicability for the article as a whole, which is the objects in space and the area between them.
3.2 Article II
The object and purpose of Article II is to prevent sovereignty claims in space. Article II is the most concise article in the OST and states in its entirety, "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." Despite, or because of, its brevity deciding the on the correct interpretation of the key terms "national" and "appropriation" requires a multistep approach.
107 Article I para. 3
108 Stephan Hobe, "International Law of Property," in Cologne Commentary on Space Law: Outer Space
Treaty, Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, eds. (2004): 33 109 Hermida, Legal basis, 57-58
3.2.1 Ordinary Meaning
There are two definitions of national that can reasonably be used in the context of Article II: 1) of or relating to a State, or 2) a person who is a citizen of a country. The term is used in two more treaty articles, and looking at the term in the context of the whole treaty shows that both definitions are used but gives a clue as to which is most appropriate for Article II. Article VI uses the first definition in making States responsible, through authorization and continued
supervision, for "national activities in outer space… whether such activities are carried on by governmental agencies, or by non-governmental entities ..." Article IX uses the second definition requires States to undertake international consultations when "an activity or experiment planned by it or its nationals" might cause harmful interference with another State's activities. Taken together the first definition is the correct interpretation of the term owing to the fact that Article IV makes every activity in space attributable to a State, so even if appropriation was carried out by a private citizen it would be a national activity. This interpretation is supported by the inclusion of "or by any other means" in the elaboration of the ban on appropriation. That phrase serves as a catch-all that shows how absolute the ban is meant to be. A possible exception considering the ban is not simply on "appropriation", but "national appropriation" is that appropriation is possible by an international entity. Considering the origin of the treaty the appropriate entity is most likely to be the UN GA or a specialized UN organ.
In Article II "appropriate" is used as a very with three possible definitions: 1) to take exclusive possession of, 2) to set apart for or assign to a particular purpose or use, 3) to take or make use of without authority. Immediately the second definition can be rejected because of its incompatibility with the freedom of exploration and use of space provided by Article I. The first and third definitions are similar but different in the third definition would build into the
prohibition an exception if a legal right can be found. The third definition would be a significant modification of the text, which makes no reference to possible exceptions, and must be rejected.
3.3 Summary
For Articles I and II there is no need to resort to special meanings of the terms in order to avoid absurd results. Nor, when interpreting there articles in good faith, is there a need to resort to preparatory work for the treaty to confirm the meaning. Article 1 grants a freedom to use space that is very broad, and the ban on appropriation in Article 2 is equally broad. The OST addresses the regulation of outer space in broad strokes because the specifics were meant to be
addressed as the space industry matured with more specific articles. Future plans for the
exploitation of outer space resources were incorporated into the Moon Agreement, but a shift in US politics in favor further liberalizing the economy kept the US from ratifying the Moon Agreement, and UNCLOS, because they were seen as placing too many restrictions on business.
In truth, the Moon Agreement makes the development of a space mining industry easier
111
because it explicitly allows for the creation of a regime to manage the activity. With only the OST, which allows for some uses but not all, it becomes necessary to determine what uses are allowed in areas designated the common heritage of mankind based on the treaties and
subsequent state practice.
4. Limits on the Freedom of Use and Appropriation
Property rights are almost always granted through an exercise of national sovereignty 112
and Article II of the OST bans claims of sovereignty over space and celestial bodies. However, past missions have collected samples from space that States have legally exercised exclusive control over. This suggests that there are acceptable modes of appropriation which can find 113
support from current regimes for the management of common resources. 114
4.1 Acceptable Appropriation
As noted in the introductory chapter, missions have collected samples of space material for study without conflicting with the OST. The freedom of scientific investigation granted by the OST is broad, and bypassed the appropriation ban for three discernible reasons. First, the materials collected from extraterrestrial environments been shared by the States that collected. Over 270 pieces of rock collected during the Apollo missions were sent as gifts to countries all over the world, and NASA maintains a loan program for every type of material collected. 115 116
Second, is that even if in the course of scientific investigation the material is used up so no other State can have direct access to it, the results of scientific studies are widely shared and provide global benefits by increasing knowledge in line with the province of mankind principle. The third reason is that the amount of material collected for research is negligible compared to the celestial bodies they have been gathered from.
112 Sprankling, The International Law of Property, 178-79
113 Buxton, "Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right, Rule of Property," J. Air L. & Com. 69 (2004): 699
114 Ibid., 58
115 Mark Bosworth, "What has happened to Nasa's Missing Moon Rocks?" 2012, BBC News, Accessed 26 July 2018, https://www.bbc.com/news/magazine-16909592
116 NASA Office of Inspector General, Nasa's Management Of Moon Rocks And Other Astromaterials
4.2 Existing System for Managing Common Resources
Space is a common area where no one State’s interests override another’s. Just as roommates must mutually agree on the use of common areas of a household, so to have States formed agreements on the use of global commons. Two systems that are frequently referenced in comparison to space are the sea and Antarctica. Both areas have mineral deposits that, like 117
with space resources, were not practical to exploit at the time of their discovery. Unlike space, the international community developed systems for consultation, if not the outright management, of those resources in line with the common heritage principle. That a similar international regime is required as a matter of custom for exploiting space resources is supported by the management system for what is currently the most exploited space resource, orbital slots. Where the examples from the sea and Antarctica are analogous to space mining because they involve mining in a harsh environment, the system for orbital slots is analogous because it relates to a limited resource in the space environment that must proceed in line with the Outer Space Treaty.
The ocean has played an important role in humanity's development. During the
negotiations for UNCLOS, Malta negotiated the inclusion of a provision designating the ocean the common heritage of mankind, tying this concept with the requirement for international management. Mining in the deep seabed is managed by the International Seabed Authority 118
(ISA). The ISA handles the benefits sharing aspect of the common heritage principle by
facilitating technology transfers and through a system of holding mineral deposits in reserve for developing States. In the reservation system, companies interesting in exploiting a deposit 119
must survey two areas and the ISA then decides which claim they will be given. When 120
exploitation is authorized or takes place within a State's own territory, there is a duty to prevent harm to the environment and to the activities of others, even for those who have not ratified the treaty because it has become a part of custom. The deep seabed mining industry is only a few 121
decades ahead of the space mining industry and to date has not progressed beyond the exploration of potential sites. 122
117 Kerrest, "Outer Space as International Space" 118 Groove, "Common Heritage", 390
119 ISA, "Reserved Areas," Accessed 26 July 2018, https://www.isa.org.jm/contractors/reserved-areas 120 Frakes, "The Common Heritage of Mankind," 417
121 Kulesza, "Due Diligence in International Law," 236
122 The Ocean Foundation, "Seabed Mining," Accessed 26 July 2018,
The Antarctic Treaty System developed after States had already laid claim to territory on the continent, but before full-scale exploitation could occur. Article IV of the Antarctic Treaty123
put a freeze on the expansion of claims and prevents new ones from being issued. Mining
124
activity in Antarctica was to be regulated by the Convention on the Regulation of Antarctic Mineral Resource Activities, but it failed to enter into force because not all of the States with existing claims became a party to it. Until the Convention enters into force all exploitation is banned under the Protocol on Environmental Protection to the Antarctic Treaty. 125
For the common heritage areas of the sea and Antarctica, the regimes have been
developed for mining to take place but no mining activity has yet taken place. These regimes are likely to influence the development of a regime for space mining, but it is also likely to be shaped by the system for managing orbital used by the International Telecommunication Union (ITU).
4.2.1 Orbital Slots and the International Telecommunication Union
Satellite orbital slots, particularly geostationary orbits around the equatorial plane, are an important part of the global economy. Orbital slots and the radio frequencies satellites use are 126
limited natural resources in that they cannot be used by two entities at the same time without causing harmful interference. The International Telecommunication Union is an
intergovernmental organization that coordinates the technical standards for telecommunication systems including the allocation of radio frequencies and orbital slots for satellites, governed by the regularly revised Constitution and Convention of the International Telecommunication Union
. The 1973 version of ITU Convention stated in Article 33 that orbital slots "...must be used
127
efficiently and economically, so...countries may have equitable access". In practice the allocation of orbital slots was made on a first come, first served basis that favored the States with financial and technical resources to make use of them. Fearing that developed countries would occupy 128
the orbits above their territories before they could, in 1976 the equatorial States of Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire issued the DECLARATION
123 Kerrest, "Outer Space as International Space," 139 124 Entered into force on 23 June 1961. Text can be found at
https://www.ats.aq/documents/ats/treaty_original.pdf, last accessed 26 July 2018 125 US State Department, Handbook of the Antarctic Treaty System, (2002): 385 126 Kerrest, "Outer Space as International Space," 136
127 Entered into force on 1 July 1994. All versions can be found at
https://www.itu.int/en/history/Pages/ConstitutionAndConvention.aspx, last accessed 26 July 2018 128 von der Dunk, "Private property rights", 150
