I became acquainted with Wayne White's work ten years ago. I do not recall that I have ever disagreed with him over legal principles; however, he makes specific assertions with which I disagree, as well as assumptions that tend to lead him into unconvincing arguments over unproductive points. Even so, White has informed my legal ideas to some extent, and to that extent I cite his work in my own.
Unfortunately, his latest article in the Space Review wanders from one issue to another as though browsing a smorgasbord, it contains unsupported assertions to which great exception can be taken, and its arguments are more normative than legal as he preaches to the choir. Thus, as one who shares many of his values regarding commercial activity in outer space, I must say that I cringed upon reading this article, as much for what it does not say as for what it says, because I had hoped for better work from him. But then, the Space Review is not a venue for presenting scholarly work, so perhaps my expectations were too high. In particular, his pot shots at the 1979 Moon Agreement, which is such a soft target, miss their mark entirely.
… [the Moon Agreement] would establish an international organization to govern resource appropriation.
This is an often repeated misinterpretation of Article 11, paragraph 5, which establishes nothing whatsoever, but merely commits states parties to "undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." In the legal sense, a "regime" is simply a set of rules and procedures to regulate an activity; it is not an organization, nor is it a government in the sense of a fascist "regime" or a communist "regime." Despite decades of disinformation linking the Moon Agreement with the Convention on the Law of the Sea, the fact remains that there is no language in the former that compares to provisions for the International Seabed Authority in the latter.
Prohibition of property rights is contrary to western nations’ laws and institutions. And the international resource organization, if ever established [in accordance with Article 11, paragraph 5 of the Moon Agreement], could impose additional costs and regulatory uncertainty upon a nascent industry.
First of all, there is the not so subtle insinuation that the Moon Agreement prohibits property rights. In fact, Article 11, paragraph 3 states in part: "Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person." Although this prohibits fee simple real property rights, other types of property rights are not excluded. As White has argued, the freedom from interference principle (Article 8, paragraph 3) implies a right to a zone of exclusivity for as long as an operation is ongoing. Furthermore, although the wording of the provision is negative and therefore its meaning is not readily apparent, natural resources removed from their place may become property, in accordance with the Lockean principle of mixing soil (of the commons) and (ones own) labor to create a private right. This provision of the Moon Agreement codified what had already become customary international law through the many examples of transferring lunar samples from one owner to another, the "history of resource ownership" that White discusses. Between the customary international law established by state practice before the Moon Agreement and the provisions of Article 11, paragraph 3, the right to extract and to own, to transfer ownership and thereby to profit from extraterrestrial resources cannot be the subject of any doubt. When U.S. negotiator S. Neil Hosenball proposed the insertion of the term "in place" on 17 April 1973, he explained that the purpose was "to indicate that the prohibition against assertion of property rights would not apply to natural resources once reduced to possession through exploitation either in the preregime period or, subject to the rules and procedures that a regime would constitute, following the establishment of the regime." The Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) accepted the U.S. amendment without objection to Hosenball’s statement, thus this interpretation reflects the consensus of the committee, and any contradictory interpretation is incorrect. (Parenthetically, notice that Hosenball referred to "the rules and procedures that a regime would constitute;" only this and nothing more, not any "organization.") Yet White believes that the 1967 Outer Space Treaty "is more benign." That cannot possibly be true if, as White states, "The Outer Space Treaty does not specifically refer to resources or real property rights." White is on the wrong side of the argument in opposing the Moon Agreement; logically, a proponent of extraterrestrial resource property rights should also be a proponent of the Moon Agreement. Instead, White "finds" a right in the Outer Space Treaty that is not explicitly in its text, just as "activist" judges "find" rights in the U.S. Constitution and make new law from the bench on that basis. He would not need to resort to this extremity if he did not oppose the Moon Agreement.
Secondly, White's speculation that a regime "could impose additional costs and regulatory uncertainty upon a nascent industry" does not bear close examination. The purpose of any regime is to create regulatory certainty, so this would more likely encourage than discourage a nascent industry. Furthermore, the last thing that a regime, even if no more than a tiny office staffed by a handful of administrators, would desire to impose onerous costs to would kill an industry that justified the existence of their office. How many people go about searching for golden-egg-laying geese to kill? On the other hand, few can be so naive as to imagine that the regulatory certainty fostering a nascent industry will be free of cost. As White suggests, "these costs can be recovered through filing and processing fees."
Other clauses in the [Moon Agreement] say that commercial appropriation is not permitted until the international resource organization is established, and only after that organization approves commercial ventures on a case-by-case basis.
It is unsurprising that White does not cite chapter and verse, as there is no such provision. This is another one of those ancient Moon Agreement myths, that it imposes a moratorium on commercial use until a regime is established, and it is one of the most illogical arguments against the Agreement. As already pointed out, states parties to the Moon Agreement "undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." How can anyone know when such exploitation is about to become feasible unless and until such feasibility is demonstrated by profitable operations? Thus, such a profitable activity should precede the establishment of a regime.
If this logic were not enough to convince an international legal scholar of the nonexistence of a moratorium, one would examine the travaux preparatoires, the preparatory work associated with the Moon Agreement, to find the intent of its text. The statement of U.S. representative Hosenball on 16 July 1979, once UNCOPUOS had finalized the text of the Agreement, was the last word on the subject in the official record of the negotiations:
[The agreement] places no moratorium upon the exploitation of the natural resources on celestial bodies, pending the establishment of an international regime. This permits orderly attempts to establish that such exploitation is in fact feasible and practicable, by making possible experimental beginnings and, then, pilot operations, a process by which we believe we can learn if it will be practicable and feasible to exploit the mineral resources of such celestial bodies.
As Hosenball testified before the Space Subcommittee of the U.S. House of Representatives, "These statements by the United States were not contradicted and constitute a part of the legislative history of the treaty negotiations." This in itself should be sufficient to prove the intent of the Agreement beyond a reasonable doubt; however, the report by which UNCOPUOS transmitted the Agreement to the UN General Assembly contained a further statement regarding this issue:
Following a suggestion for further clarification of article VII, the committee agreed that article VII is not intended to result in prohibiting the exploitation of natural resources which may be found on celestial bodies other than the Earth but, rather, that such exploitation will be carried out in such manner as to minimize any disruption or adverse effects to the existing balance of the environment.
When the General Assembly voted to commend the Moon Agreement to Member States for signature and ratification, it also commended to them this understanding, as UNCOPUOS delivered them together in the same report. No contrary interpretation of the Moon Agreement has any legal validity.
As they say on late night television advertisments, "But wait, there's more!" The same UNCOPUOS report the the General Assembly included a blanket disclaimer:
No provision of this Treaty shall prohibit the exploitation of natural resources which may be found on celestial bodies.
Wayne White should know all of this, since I presented to him as a gift in 2009 a copy of my book, The Development of Outer Space: Sovereignty and Property Rights in International Space Law, in which I made these arguments. I do not see where he has refuted me, and it saddens me to see that he continues to serve a repeater station in the tired old propaganda network against the Moon Agreement. To the extent that there is uncertainty in international law regarding property rights in outer space, it is those who misinterpret the law that is on the books, and in particular those who advocate killing treaties, who generate a great deal of that uncertainty, and to the extent that this uncertainty depresses investment in commercial outer space enterprises, they should reflect on their effect.
Not that the Moon Agreement is without its problems, it is simply that the issues that White raises are easily knocked down. I address what I believe are more substantive concerns in my doctoral dissertation, which has withstood the review of my committee but is not yet published. A draft Solar System Treaty, together with its Property Rights Protocol and its Dispute Settlement Protocol (parts 1, 2, 3, 4, and 5), with which I propose to replace the Moon Agreement, is available online. Readers familiar with White's 2001 draft Property Rights Convention may notice some intentional similarities in the Property Rights Protocol.
Despite the title of his Space Review article, he devotes surprisingly little space to discussing his proposed Space Pioneer Act. From his brief description I would say tentatively that I favor it in principle. White and I actually occupy a great deal of common ground with regard to the values that outer space law should uphold and the goals that it should encourage achievement of where possible. As an example, I agree with him that pursuant to the Outer Space Treaty, "Parties have no jurisdiction to grant or recognize permanent titles to territory." Although White shies from citing specifics and mentions only that "several proposals for space property rights have been publicized," it follows that Alan Wasser's proposed Space Settlement Prize Act would violate the Treaty.
It is my understanding that these days White's efforts are more directed toward national legislation, whereas my work is in international law. Summoning a concert of national space legislation that plays well together will be no easy task, any more than concluding new international space agreements, but one track reinforces the other. The extant treaties provide a coherent framework of principles for national laws to implement in greater specificity, while new national laws, such as a reworked version of the ASTEROIDS Act on which the U.S. Congress held hearings this year, will build momentum for negotiating the five-letter "R" world -- the regime -- to ensure that all nations play by the same basic rules and procedures in the international environment of outer space.
But White says, "The Space Pioneer Act is something we can do right now, to provide for our future." OK… so, where is it "right now?" And, as Tonto said to the Lone Ranger, who's "we," White man? Has White written this wonderful piece of legislation to secure our future? If so, where is it? If not, is he proposing that someone else write such a piece of legislation? The subjunctive mood that he uses in his final paragraph, referring to an act that "would" include a laundry list of this and that, suggests that all he has brought to the table is the title of an act, which is no more useful than suggesting that "someone" write a Shakespeare play titled Macbeth, Part II.
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