Friday, 2 March 2018

Space Law and extraterrestrial resources - a summary

by Adam D.A. Manning LLB, LLM, Solicitor

Summary: "Extraterrestrial resources" includes territory on the Moon or Mars, the soil (or regolith) of the lunar or Martian surface and asteroids and the minerals that they are comprised of.  Space Law's regime concerning the ownership and exploitation of extraterrestrial resources is unfinished. As a result, no one - no nation state, individual or company - can legally own, transfer, lease or sell extraterrestrial resources.

After several years of studying Space Law as part of the SPACE Project for the British Interplanetary Society, the following are some conclusions that have been reached regarding the laws concerning the ownership of extraterrestrial resources. This ownership is an important point when considering the larger scale settlement of space, as the plans involve the use of extraterrestrial resources at some point, whether it be bases or settlements on the Moon or Mars or the use of lunar or asteroid material in building a space habitat.

  1. The Outer Space Treaty from 1967 is the most important source of rules concerning the ownership of extraterrestrial resources. Even if it is replaced or repealed, many of the principles found in it would influence Space Law for a long time to come.
  2. One of its most important provisions is that no nation state can own territory or land on the Moon or any other celestial object (apart from the Earth) either by a formal act or by physical occupation.
  3. If nation states cannot own territory, neither can private individuals or companies or other organisations.  Private individuals, companies and so forth derive their legal rights to own land or territory through that state’s legal system. If the nation state cannot own land, it cannot grant its citizens or other legal persons the ability to do so. There is no other source for such rights.
  4. Similarly the ownership of extraterrestrial resources, for example lunar or Martian soil or asteroids and the minerals they are composed of, is prohibited at present by Space Law.
  5. The laws relating to the ownership of lunar soil and so forth are set out in the Moon Agreement of 1979. Article 11 prohibits the ownership of these resources until such time as an international regime is enacted to administer the use of extraterrestrial resources.
  6. This international regime has yet to be enacted. As a result, the ownership of physical extraterrestrial resources is prohibited.
  7. Whilst the Moon Agreement has not been widely ratified, enough countries have signed it for it to be enacted by the United Nations.
  8. In the absence of any other legal rules concerning extraterrestrial resources, the Moon Agreement is therefore the leading legal authority on this point.  There is no legal authority giving anyone the right or power to own, transfer or sell extraterrestrial resources.
  9. At best, the legal ownership of extraterrestrial resources is uncertain and questionable. Those investing large sums of money into projects concerning moon or asteroid mining need to take this into account – will they have the necessary legal rights to sell or transfer any materials they obtain on the Moon, Mars or asteroids?  They do not have a clear legal basis for doing so.
  10. The issue can be seen as one of title to either the territory that is claimed, the minerals extracted or products that are derived from extraterrestrial resources. Space Law does not provide anyone with good title to any of these things, which has implications for the ownership, transfer or even sale of such resources.  If you don’t have good title, you do not have anything that you can sell or transfer.
  11. New legislative measures from the USA and Luxembourg cannot breach or go beyond these principles. Indeed, provisions of the SPACE Act make it clear that the USA will comply with its international obligations, which must include the Outer Space Treaty.
  12. The USA's SPACE Act is a welcome attempt to encourage American space development but it cannot alter the obligations under international law. In this area, it says, in effect, that American Courts can give recognition to American rules about extraterrestrial resources; a purely internal American arrangement. There is no reason that China or Russia, for example, need to give such regulation any recognition.
  13. An international regime of some description is needed to administer the ownership and exploitation of extraterrestrial territory and resources.  The regime relating to the deep sea bed is directly analogous to outer space, particularly with regard to the focus on mineral wealth, and is an instructive guide to thinking about these issues and future legislation.
  14. The alternative is to not have any regime for regulating the ownership and exploitation of extraterrestrial resources. The resources of space then become a race for whoever can grab them the quickest and hold onto them.  Any prospect of a rational management of their ownership and exploitation would vanish in such a free for all, with the most powerful nation states taking the dominant role.
  15. Practical, imaginary examples help illustrate this point. A company, Lunar Hotels Ltd, builds a hotel on the Moon at great expense. A week later, an armed force from a hostile country arrives and, at gunpoint, takes control of the hotel.  Legally, Lunar Hotels Ltd does not have a claim on the land the hotel is built on and so has little legal ability to keep the armed invaders out of the hotel or to claim it back from them afterwards.
  16. A company called Interspace Developments plc builds a large space habitat in high earth orbit, constructed from materials mined from near earth objects and asteroids.  A year or so later, a force from a new, independent organisation based in space called Astral-One, arrives and demands that Interspace Developments plc hand over the space habitat to them.  The company has a moral argument (along the lines of "that's not fair") and if suitable weapons are to be found in or on the space habitat, possible military means to respond, but the one thing it doesn't have is a clear legal claim to the space habitat it has created, either in terms of the space or place in orbit that it occupies, or the materials that it is constructed from.
  17. Another practical way to think about all this is to imagine it as interplanetary conveyancing. Many people will be familiar with the process of buying a house or flat and using the services of a lawyer to check the title to the property they are buying, to make sure it is worth the large sum of money they are paying. In these terms, if someone wanted to pay £1M to buy a large area of land on the Moon, or to buy a mountain on the Moon (that is the physical substance rather than the territory), a reasonable lawyer would have to advise them that as a result of the difficult legal position at the moment, with the consequently weak ability to claim or protect what you had purported to purchase, it would be a very risky investment.
  18. Finally, a company called Mars 4 U Inc sets up business by taking small rocks from the Martian surface to sell to people on Earth and, as a sideline, can grind the rocks up to make statuettes for sale as well.  Legally, it has no ability to own or transfer these products.  Their customers do not obtain good title to either the rocks or the statuettes in these transactions. 
  19. There is a question of enforcement of these rules but questions about enforcement bring us back to how uncertain and doubtful the current legal regime concerning extraterrestrial resources is.
  20. If space development is to proceed, these questions must be resolved, one way or another, to ensure those investing large amounts of money have adequate protection for that investment.  It really is a question of the rule of law - is this going to apply to the ownership or exploitation of extraterrestrial resources, or not?
  21. If plans to build bases and habitats on the Moon, Mars or in space go ahead, it would be helpful to those efforts to have a rational legal regime that administers issues of ownership and exploitation so that those investing the considerable time and money involved would be entitled to legal protection. While there are plans for such space development, there is still time to move Space Law in this area on so that a useful regime can be put into place to support these efforts.

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