By Adam Manning LLB, LLM
A discussion of the laws of Outer Space as they apply to the utilization of the resources of space and ultimately the settlement of space.
This article is part of work carried out for Project SPACE, the British Interplanetary Society's study project on space colonization.
As the realm of human activity has expanded out from the surface of Earth, so legal norms have been promulgated to regularize and restrict that activity. In examining the history of the law of Outer Space we can see Earth bound precedents playing an important role. Similarly influences from the geo-political context, whether it is Cold War hostility or the rise of the developing world, are bound up in the moulding of this novel jurisprudence.
Yet the way we think of space and its resources is not solely defined by these factors especially when we consider how the exploitation of space resources and ultimately space settlement might develop in the future. The historical account of the development of ideas of sovereignty and property rights, or otherwise, in the law of Outer Space has been rooted in the relationships of nation states and has little to do with civilian or commercial interests and the greater use of space resources that we hope to see develop.
As the exploitation of space resources becomes of greater interest, the law of Outer Space seems out of step with these interests due in large part to its historical sources. A study of the way the law has been created is a good illustration of the tensions between how many feel the law should be and what the law appears to be. The following discussion critically examines the present legal principles applying to space resources and in particular does so in the context of the sort of private or even commercial enterprises that may play a role in the development of space and in time even its settlement.
The historical background
Prior to Sputnik I and the start of the Space Age in 1957, the English legal position concerning the ownership of space had been clear. The common law set forth the proposition of cuius est solum, eius est usque ad coelum et ad infernos. This handy phrase meant that an owner of a parcel of land owned everything directly above and 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.
This doctrine was most significantly established in the case of Bury v Pope from 1587 and whilst its implication is that it is of unlimited extent, in practice it was only ever applied in a much more limited sense. Most importantly it found application in cases of overhanging buildings intruding into a property owner’s land. After the principle was set out by the noted jurist Blackstone, it became of importance in American Law as well.
Exceptions to this rule soon became apparent though, such as the Crown’s rights to certain minerals below a plot of ground. With the advent of air travel by balloon the absurdities that might arise from applying the principle became evident. A case of a balloonist crossing someone’s land was referred to as being one of such negligible damage that the law would not provide a claimant with a remedy. The law was therefore seen as being out of step with people’s expectations and it does not appear that any Court proceedings for trespass were ever based on a flight by a balloon.
When powered aircraft took to the skies the cuius est solum principle did not prevent aircraft crossing property owner’s land or for providing redress if they did. The Court’s decisions took the view that no one expected such a principle to be applied so as to prevent air travel over land. As the doctrine was originally precedent based, these cases could easily be distinguished from cases such as Bury v Pope. Accordingly the cuius est solum doctrine was found to have no application to air travel and, by extension, could have no role in Space Law.
|A small space station in lunar orbit|
With the start of the Space Age, the seeming legal void concerning operations in outer space and 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).
One of the major influences on it was the legislation drawn up concerning the use of Antarctica and we can see this in the general conception of space in the Treaty as being an area under international control to be used for peaceful, scientific purposes. The treaty was drawn up in the expectation that soon humans would be exploring the Moon following President Kennedy’s challenge to the United States to achieve this by the end of the sixties.
The Outer Space Treaty is of major importance, not least because it has been ratified by all the space faring nations. Drawn up during one of the most dangerous phases of the Cold War, one of its major preoccupations 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.
The Treaty’s efficacy is, it is suggested, bolstered by the view that its principles are now so well established that they form a substantial part of the customary law of Space. The principles set out in the Treaty reflect in many respects the general consensus that had been reached by that point as reflected in its preamble. The importance of the Outer Space Treaty due to its widespread ratification and acceptance into customary law suggests that any further development of the exploitation of space resources and the settlement of space will be greatly influenced by its terms.
Of more direct relevance to those interested in the settlement of space than clauses concerning nuclear weapons are those that consider issues of sovereignty and proprietorship. The preamble sets the tone for the substantive clauses by noting the common interest of all humanity in the progress of the exploration and use of outer space. This idea of the common interest, or heritage, is a significant theme throughout the legislative law of Outer Space, reaching back as it does to both the law of the sea and the laws enacted concerning Antarctica. This principle is usually referred to by the formulation of the common heritage of mankind.
The preamble goes on to say that the exploration and use of outer space should be carried on for the benefit of all peoples regardless of economic and scientific development. It is important to note these two statements are not, so far, mandatory legal requirements but instead describe a context in which all that follows has to be placed. Like much of the rest of the Treaty, the preamble is drawn from the wording of an earlier UN resolution enacted in 1963 and so the setting out of this context is suggestive of the historical tradition the Outer Space Treaty is based on. Nothing is said about private ownership or commercial interests or development of outer space.
Whilst the Treaty seems to be afflicted by what we might call "planetary chauvinism" in that it appears aimed at activities on the surface of the Moon or other celestial bodies, it also includes activities in outer space itself; that is space above the surface of any celestial body. The Outer Space Treaty refers to outer space is to "outer space, including the moon and other celestial bodies" and so its terms include activities such as the building of space stations or even space colonies or habitats in orbit around the Earth, the Moon or anywhere else in space.
It is worth setting out some of the relevant Articles of the Treaty verbatim for consideration.
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, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
Whilst Article 1 does not directly restrict or limit exploitation by private concerns it has to be noted that according to the Treaty any activities by such concerns in outer space shall be carried out for the benefit of all countries and shall be the province of all mankind. It is not unreasonable to conclude that a company set up to mine asteroids so that the minerals can be sold on Earth for profit for the company’s owners does not easily or demonstrably fit within that description. This is not to say that any such company would immediately render its operations unlawful but a theme is developing, as we saw with the preamble, that the wording of the Treaty is not very helpful to those intent on the commercial exploitation of space resources.
The requirement of free access to all areas of celestial bodies is also noteworthy and will be developed more robustly in Article 2. Suffice to say, a privately owned base on a Moon could find itself being intruded upon by others relying on this point.
That the exploration and use of outer space has to be done without any discrimination on the basis of equality also puts a gloss on the otherwise unfettered freedom to explore and exploit. There is no regime in place to enforce this obligation and it is difficult to see how it could be made effective yet this stipulation, like the others, is not strongly supportive to those who seek the purely commercial exploitation of space resources.
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.
This very important Article makes it clear that no nation state can claim ownership of any part of a celestial body. A de jure claim for ownership is as invalid as a de facto one based on occupation, possession, use or exploitation. Nation states cannot, as it is commonly believed they did in earlier ages, stake claims to areas of the Moon or to asteroids by going there and planting a flag. During the Apollo programme, the United States was sufficiently concerned about this point that a statute was passed to make it clear that the act of planting flags on the Moon was not in anyway a territorial claim to the Moon or part of it.
This is a very far-reaching principle and directly affects private space interests who seek to exploit resources on the Moon or asteroids. Private legal ownership of land devolves from a nation state’s legal status as sovereign. For an individual or company owning land within that nation state, they can rely on the state’s laws and Courts to recognize their ownership of that interest if someone seeks to interfere with it. In the absence of any power for a nation state to give recognition to private legal interests, there is no ability for private interests to legally enforce them.
Article 4 of the Outer Space Treaty prohibits the installation of weapons of mass destruction on celestial bodies. Proponents of the settlement of space sometimes include the construction and use of a mass driver on the Moon in their plans and one question that might be asked is whether such a device could be prohibited under an interpretation of this Article. A mass driver in this scenario is a large installation that uses a long rail of electromagnets to accelerate a payload, typically an amount of lunar regolith, to extremely high speeds so it can be delivered somewhere else for use. For example, a payload of lunar regolith could be flung from the Moon’s surface to a point in space where a space habitat was being built. The lunar regolith in this example would then serve as building material for the construction of the habitat.
It is possible that such a device could also be used destructively. Effectively boulders on the Moon could be catapulted from the lunar surface at Earth and once in the Earth’s gravity well would unerringly hit the surface with tremendous force. As a consequence, it is arguable that the construction of a mass driver on the lunar surface breaches this Article.
Article 6 of the Outer Space Treaty states that nation states bear international responsibility for activities carried out in space by both governmental or non-governmental organizations. Activities by non-governmental entities must have authorization from nation states followed by ongoing supervision. To continue our example of a mass driver on the Moon, let us imagine a Canadian company constructing and installing one on the lunar surface and that due to negligent operation the payload from the mass driver strikes and damages another country’s space craft.
According to Article 6, in this example the Canadian government would be liable for the damage so caused. It is likely that the Canadian government would have previously licensed the mass driver’s operation under Article 6 and part of this license could entitle the Canadian government to in turn pursue the company for any damages the government had been required to pay. It maybe, for example, that this authorization would require the company to obtain insurance for such a possibility. This potential liability on a government for the actions of a non-governmental agency is somewhat unusual in international law.
The obligation this responsibility puts on national governments is often dealt with by a system of licensing. The UK’s licensing obligations are dealt with by the Outer Space Act 1986, which requires that any space activities launched from the UK require a license from the government.
Article 8 of the Treaty makes it clear that simply because an object is launched into space, ownership of that object is not affected. So, no legal vacuum occurs simply because an object happens to be in the vacuum of space. Interestingly, Article 8 extends this principle to include not only objects that land on celestial bodies such as the Moon but also objects that are constructed on the surface of a celestial body. No inkling is given of how this interacts with the prohibition on claims of sovereignty set out in Article 2 but the inference here is that this concerns items of personal property rather than claims for land.
For example, let us imagine a base on Mars populated by settlers. At some point, one of the settlers uses Martian soil in the construction of a building. The Outer Space Treaty does not prohibit the ownership of the building’s materials as such although Article 2 would prevent claims to ownership of the land on which the building stands.
Article 9 of the Treaty is worth setting out in full.
In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.
This important provision says a lot about the underlying forces at work in the creation of the Treaty and points the way to later enactments. If we are concerned about the utilization of the resources found in space particularly by private companies then this provision militates against those concerns.
A requirement of consideration for other nation states is set out. It has to be remembered that all space activities are, under the Treaty, supervised by the signatory states and so there is the possibility that these somewhat nebulous sounding requirements will influence and shape a state’s supervision of private space activities. Adverse environmental contamination of Earth by the introduction of extraterrestrial matter has to be avoided. In the UK, for example, it is possible to imagine that lunar regolith could be regarded as a hazardous substance due to its very fine nature and would therefore be controlled through the applicable statutory regime.
It is the second half of this Article that is most worrying for private space companies seeking to utilize the resources on the Moon or asteroids in working towards the settlement of space. Let us return to the imaginary mass driver being installed on the Moon. It does not seem difficult to imagine other countries being interested in such activity. This could then lead onto consultation concerning the work being undertaken.
In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively.
Whilst the obligation to fulfill this requirement is on the signatory country, this could in theory require a private company to reveal any potentially commercial sensitive information. For example, the company constructing the mass driver on the Moon would have to reveal the results of their work thus enabling others to utilize this information. It is possible that intellectual property rights ought to be safeguarded, but this is yet another clause that does nothing to help the private utilization of space resources.
Article 12 takes this point even further.
All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may betaken to assure safety and to avoid interference with normal operations in the facility to be visited.
As before, private companies in space are supervised by their country of origin and so this requirement means that they would have to allow such visits (subject to reasonable notice) just as government installations on the Moon or Mars and so forth would have to. Again, this is not greatly helpful to a private company seeking to progress the utilization of space resources.
In conclusion, the Outer Space Treaty was not drawn up with the private utilization of space resources in mind. In large part, it reflects the tensions between the space powers of the United States and the Soviet Union, particularly with its thankfully successful prohibition on nuclear weapons in orbit. The extension of the principle of the common heritage of mankind from the ocean bed and Antarctica to the reaches of outer space suggests a view of space as a wilderness, a realm beyond private or commercial exploitation.
The legal enforceability of the Outer Space Treaty is not doubted. It has long been ratified by all the main space going powers. As of May 2013, 102 countries are party to it whilst a further 27 have signed it but have yet to ratify it.
The Moon Treaty
Part of the rationale for the principle of the common heritage of mankind as applied to space was ensuring that the space faring nations, which tended to be the developed economies, did not appropriate space resources at the expense of the developing world. In the Outer Space Treaty we can see the working through of this principle in such requirements as to observe a principle of co-operation and to act with due regard to the interests of all other state parties to the Treaty as well as the effectively explicit reference to it in Article 1.
The common heritage principle is an attempt to avoid the worst excesses of the imperial and colonial history of the world’s leading economies. For example, jurists had in earlier times sought to justify the colonization of America by the English, calling upon principles of Roman law amongst others. In dubiously setting out a supposed legality for the actions of the first settlers in appropriating land, these efforts in retrospect only seem to make the real nature of these events more apparent. The common heritage principle sets out an entirely new legal environment and its proponents have acclaimed it as the most important legal principle for thousands of years. An area set aside as part of the common heritage is simply not amenable to private or corporate exploitation. The general philosophy is that any such areas will be the subject of international consultation before development commences.
The Outer Space Treaty came into existence shortly before the Apollo lunar missions. In the years following Apollo, the United Nations began work on a new treaty to supplement it and this became known as the Moon Agreement. It’s full name is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies and it was adopted by the United Nations in 1979. Although it is known as the Moon Agreement it refers to not only the Moon but also any celestial bodies with the exception of the Earth, the orbits around any celestial body other than Earth and any trajectory to and from any celestial body other than Earth. Throughout the Moon Agreement, a reference to the Moon implies all of this and so "the moon" means all of outer space.
Like the Outer Space Treaty, important provisions prohibit the installation of weapons of mass destruction, with direct reference to nuclear weapons, in orbit, on the Moon or any other celestial body. The Moon can only be used for peaceful purposes and there is a total prohibition on the setting up of military bases on celestial bodies as well.
Article 4 is of immediate concern to those interested in the utilization of space resources.
1. The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations.
2. States Parties shall be guided by the principle of co-operation and mutual assistance in all their activities concerning the exploration and use of the moon. International co-operation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations.
The first part is a restatement of the common heritage principle, here in very clear and uncompromising language. Any development of space resources has to be for the benefit of everyone and not just those carrying out the development. Generational equity also has to be considered, that is ensuring future generations have some access to resources. Space activities are expected to take place in a context of international co-operation through, presumably, some form of consultation.
We again come into contact with the tension between the common heritage principle and the needs of a commercial or corporate interest in utilizing space resources. It might be possible to suggest that commercial development of the Moon does benefit everyone as any form of economic activity has the possibility of creating jobs, income and capital but this rather tenuous theory cannot be what the framers of the Moon Agreement had in mind.
In keeping with the Outer Space Treaty, anyone carrying out space activities is expected to freely transmit any information about their activities including any discoveries made. Article 7 requires that measures be taken to avoid contaminating Earth with hazardous extraterrestrial material but goes further and enjoins those exploring outer space to take measures to avoid adverse changes to the environment of the Moon or other celestial bodies. The large scale use of lunar or asteroid materials in the construction of a space habitat, for example, could potentially breach this Article. Also Article 7 envisages the possibility of areas of scientific interest on celestial bodies as potentially being protected by international preserves to be organized through further consultation.
Article 11 of the Moon Agreement includes the words, “The moon and its natural resources are the common heritage of mankind” and goes onto reinforce the prohibition on claims of sovereignty over the Moon or celestial bodies. Space explorers are accorded full freedom to explore under the treaty but there is a total barrier to any claim of ownership to land. Buildings and bases can be built but the owners of the bases cannot thereby claim the land on which the base is stood (or inside in the context of an underground base).
The Moon Agreement goes onto say that as exploitation of the Moon and other space resources becomes possible, the signatories are expected to consult on and create an international regime to govern the exploitation of those resources. This is the Moon Agreement’s way to resolve the conflict between the common heritage principle and the utilization and exploitation of space resources.
A general outline is provided for this regime. Management of space resources has to be rational, carried out in a safe and orderly fashion and with a view to an expansion of the opportunities for utilization. The final point states that the regime has to ensure “an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.”
The regime has to, somehow, ensure that any exploitation of space resources allows for this sharing across all countries. It is not easy to see how this can be reconciled with utilization for commercial or private purposes. A case could be made that, for example, the construction of a space habitat or the use of lunar or asteroid materials in constructing a constellation of space solar power satellites was for the benefit of all states. Yet this indirect approximation of the principle is clearly not what the developing countries had in mind when this obligation was drawn up.
Article 7 of the Moon Agreement has a requirement that is similar to Article 12 of the Outer Space Treaty by requiring anyone with a base or building on the Moon or other celestial bodies to allow anyone else, upon giving reasonable notice, to enter their premises. This strengthens the prohibition on claims to sovereignty and makes it far more difficult to suggest any part of an extraterrestrial base is entirely inaccessible to anyone else.
As is well known, the Moon Agreement is of dubious enforceability. As of 2014 it has only been ratified by sixteen states. Set against the substantive recognition given to the Outer Space Treaty, the Moon Agreement has failed to attract widespread support.
|An Asteroid Redirect mission approaches the lunar station|
The Moon Agreement looks ahead to a future of more wide spread access and utilization of space. It envisages bases and buildings on and under the Moon’s surface and by extension other planetary bodies within the solar system. Its provisions are drawn up to help shape the legal environment of that future and the principle of the common heritage of mankind plays the most important role in that shaping.
A key question concerning the commercial or private exploitation of the resources in space is one of ownership. An economic entity will want to own in some way the resources it uses to ensure it can keep the rewards for its activities. Yet the law of Outer Space at every stage prevents any claim to legal title to an extraterrestrial estate. Private ownership of land derives from legal recognition in a state’s courts, based on a state’s condition as sovereign of the nation in which that land is situated. If a state cannot claim any form of sovereignty, that necessary first step does not occur. As we have seen, whilst private ownership of the products of extraterrestrial materials is not directly prohibited, according to the Moon Agreement the use of resources to make such products has to be governed by an international regime. In other words, you may own what you make but the United Nations will seek to manage the whole process. This ambiguity is not helpful to those interested in the private or even commercial utilization of space resources.
If we consider the effective power of these laws, we can be sure that the Outer Space Treaty’s provisions will be a major influence on the future development of space as long as it remains in force. Though the Moon Agreement does not have anywhere near the same international recognition, it’s provisions still provide some of the most important rules on how the use of space resources is at least expected to take place. The treaties will undoubtedly shape the context for future debates and negotiations for the development of space as they are the most important sources of legal norms on such activity at present.
It is no answer to say that anyone with the power to get into space and land on the Moon, Mars or an asteroid and commence some form of mining or other exploitation will thereby by default gain ownership and can simply ignore these legal provisions. For the foreseeable future, such an enterprise is at some point going to return to Earth and it will be Earth’s nations and their citizens, subject to the rule of law as they are, which will provide any markets for the goods and services these enterprises provide.
The terms of the Moon Agreement strongly suggest that there might be formidable opposition to commercial exploitation of space resources without the sort of equitable sharing, however achieved, that the Agreement prescribes. The common heritage principle could easily come to the aid of those seeking to prevent or hamper private or commercial space development. Despite the widespread failure to ratify it, the Agreement is still an important source of legal norms, posited by the United Nations.
It is disappointing in some respects that the Moon Agreement’s regime for space resources was not implemented as this would provide an indication of how the common heritage principle and private or even commercial exploitation might be reconciled, if at all. Commercial exploitation of other areas protected by the principle of the common heritage has been controversial and it is likely that space development will be the same. Yet we would at least have a regime in place which could, if required, be reformed to reflect new approaches to space development. As matters stand, there is a legal void on how this should lawfully proceed.
In the absence of such a regime it is possible that any development in space will be, as it has been to date, the province of space faring nations. Any private or commercial concerns face not only the usual technical and financial difficulties but also an unsympathetic legal framework.
The greater interest in private space development has once more thrown these legal difficulties into focus, as shown by a recent attempt at introducing new national legislation in America. The American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROID) Act sought to enjoin the US government to facilitate the commercial utilization and exploitation of asteroids. It also sought to enact a principle that whoever obtained resources from an asteroid thereby became the owner of that property and has full rights to that property in accordance with the law. Its most interesting provision is one that seeks to resolve any dispute between entities within US jurisdiction on the basis that whoever makes a claim first will be successful, subject to the international obligations on the government in such situations.
Nothing in the ASTEROID Act, such as it is, ostensibly breaches the Outer Space Treaty and the Act can be seen as a way of promoting the concept of obtaining resources from asteroids within the US legal system whilst giving due recognition to the provisions of the Treaty. Its progress towards enactment was brought to an end however and in the debate it was suggested that it would be some decades before anyone could practically obtain material from an asteroid to be used industrially.
The ASTEROID Act makes the point about the need for reform of the legal principles governing space resources if private and commercial utilization is going to prosper. Such activities will have to take place in a legal environment and at present that environment is inimical to these efforts growing and ultimately succeeding. It is submitted that these rules ought to be reformed if private efforts to further expand the reach of humanity are to be given the very best chance of achieving their dream.