By Adam Manning LLB, LLM
Please note the following does not constitute legal advice. Any inaccuracies please let me know!
Legal ownership of space resources
Prior to Sputnik I and the
start of the Space Age in 1957, the English legal position concerning the
ownership of space had been remarkably clear.
The common law set forth the proposition of cuius est solum, eius est
usque ad coelum et ad infernos. Lawyers are not supposed to use Latin in
these modern times so I ought to provide a translation before my practising
certificate is rescinded. This handy
phrase means that an owner of a parcel of land owns everything directly above
and for that matter below it, to the Heavens themselves or Hell below. This doctrine clearly has its origins in a
pre-scientific age when the practical exploitation of the heavens, or rather
space, was of no significance.
Exceptions to this rule
soon became apparent though, such as the Crown’s rights to certain minerals
below a plot of ground and with the advent of air travel by balloon the
absurdities that might arise from applying the principle became evident. When aircraft took to the skies, legal
exceptions were allowed so that those flying over land could not be sued for
trespass and whilst in theory the common law principle extended beyond Earth
orbit, it is unlikely anyone will ever successfully claim damages against the owners of a
satellite passing over their land using this ancient common law principle.
With the start of the Space
Age, the need for a legal regime to manage and regulate this new arena of human
endeavour became apparent. The United
Nations was the natural focus of efforts to consider these issues at an
international level and following work in the early sixties, the Outer Space
Treaty was drawn up in 1967. More fully
known as the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies, this was and continues to be the major legislative enactment concerning
the exploration and exploitation of space and the celestial bodies contained
within it (with the exception of course of the Earth).
The Outer Space Treaty is
of major importance, not least because as of 2012 it had been ratified by all
the space faring nations. Drawn up
during one of the most dangerous phases of the Cold War, its major
preoccupation is unsurprisingly the peaceful use of space. States are prohibited from installing
nuclear weapons or other weapons of mass destruction in orbit or on the Moon or
other celestial bodies. We have to be
grateful that the Treaty has been successful in this aim to date.
Other provisions are more
directly of interest to those studying the law relating to the exploration and
exploitation of resources to be found in space (which I will take to include
those on celestial bodies, to use the Treaty’s language). According to the Treaty, nation states
cannot claim ownership of extraterrestrial resources including land
itself. So, the USA could not for example
claim an area around the Apollo moon landing sites as thereby falling within
USA ownership.
It is thought this
prohibition on ownership does not extend to private ownership so a company or
even an individual could claim some form of de facto ownership
presumably by an act of occupation.
Nation states are expected to regulate space activities by their
citizens and one of the lesser known aspects of this obligation is that nation
states are effectively responsible or liable for the activities in space of
their citizens. So, for example, if a
British company carries out activities on the Moon this could lead to the U.K.
government becoming liable for any acts of that enterprise. In the U.K. these obligations are
implemented under the Outer Space Act 1986 which provides for licensing of space
activities by the U.K. government.
In comparison, the later
Moon Treaty of 1979 has not been as successful in shaping the legal regime of
outer space. The Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies, to give the
treaty it’s full name, went further than the previous one in seeking to
regulate the use of space resources.
One of the Moon Treaty’s
core concepts is that space, the Moon, the planets and all other celestial
bodies aside from the Earth are the common heritage of humanity. This doctrine is mentioned in the Outer
Space Treaty but is more fully developed here as its general tenor appears to
prevent the ownership or exploitation of space resources either by nation
states or private organizations or individuals.
The Moon Treaty has yet to
be ratified by any of the space faring nations and it is possible to see it as
an attempt by non space faring nations, particularly from the developing world,
to inhibit the richer space enabled countries from exploiting the resources to
be found in outer space for their own gain.
Whilst enough countries have ratified it for it to have legal force, the
lack of full ratification suggests it would in reality be of dubious
enforceability.
The treaty looks forward to
a time when the exploitation of, for example, lunar materials might be a
practical reality and stipulates that before that takes place an international
regime is implemented to regulate such activity. This might involve some form of land registration for lunar
territories presumably organised under the auspices of the United Nations.
Commentators have suggested
that this approach is resistant to the use or exploitation of space resources
particularly from a commercial view.
It’s likely that when the use of lunar or other celestial resources becomes
a reality the Moon Treaty’s lack of enforceability will lead to it falling
away.
Law of the International Space Station
The legal regime concerning
the International Space Station (ISS) is founded on the joint agreements
between the contracting states responsible for it’s construction.
The ISS consists of
interlocking modules, each of which originates from one of the contracting
states and the applicable law of each module is that of the state which
constructed it. In effect each section
of the ISS is a continuation of the jurisdiction of the state that built it and
this applies to both criminal and civil law, including intellectual property
law.
It is difficult to see how
this concept might be applied to a large O’Neillian style space station even if
constructed by a collection of nation states as such a habitat would be a more
integrated design than the modular nature of the ISS. Nevertheless, it is not impossible to imagine a space station
built with some degree of modularity and in the early stages a division of this
sort might be feasible and indeed desirable to ensure it is built.
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