On 25 April 2013 I was asked on Facebook, "What do you figure out mining activities in space in compliance with International Space Law?"
Some commentators say that commercial mining activities in space are permitted by international space law, while other commentators say that they are prohibited. Even if those of us who believe in the present legality of such activities are right, the problem remains that this uncertainty exists, and with all the financial and technical risks that entrepreneurship must successfully manage, the last thing it needs is to face an uncertain legal environment. Settling the international law regarding such activities is the strongest argument for a new treaty.
In my view, the current state of international law as follows:
Article 2 of the 1967 Outer Space Treaty states, "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." Some commentators claim that this prohibits only government ownership, not private ownership. However, this claim cannot stand in the face of Article 6, which states in part, "States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty." Clearly, Article 6 applies Article 2 to all entities equally, whether public or private. No less than government activities, private activities are national activities.
Meanwhile, some commentators, including myself, conclude that Article 9 implies a zone of exclusive control and use that is limited in area to the extent necessary to ensure non-interference and that is limited in time to the duration of activities in the specified location: "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." We see in this the basis of a property right over a limited surface area, although not in perpetuity as in the fee simple property deeds that are common in the United States. The point is that one is free to use what one can use while one is using it.
State practice in support of this interpretation is the case of lunar material brought to Earth by Apollo and Luna missions between 1969 and 1973. The US and Soviet governments, respectively, asserted ownership of these samples; challenges to these property claims were few and were not taken seriously. If the aforementioned interpretation of the 1967 Outer Space Treaty is incorrect, then in contravention of the treaty, this state practice is evidence of customary law that developed during 1969-1973 that the resources of celestial bodies, once removed from their natural place, become property. A further point is that these samples became the property of the governments that obtained them from the Moon, thus either the interpretation of Article 2 that it prohibits government ownership is incorrect or this prohibition has been superseded by customary law. Both the principles
lex posteriori derogat lex priori and
lex specialis derogat lex generalis apply.
Another argument in support of the aforementioned interpretation of the 1967 Outer Space Treaty is one of logic rather than of legal language. The Apollo program schedule dated 30 November 1966 planned for the first manned lunar landing to occur in March 1968. A week later, on 6 December 1966, President Lyndon Johnson announced the conclusion of negotiations on the Outer Space Treaty. Although information on the Soviet L3 program is sparse, there is evidence that its schedule then called for the first manned lunar landing to occur in September 1968. Presumably, the schedule of the Soviet unmanned lunar sample return program was competitive, and perhaps even hoped to achieve a successful mission before the first Apollo expedition to the lunar surface. It is not plausible that either the US or the Soviet Union would have negotiated away their right to control lunar samples that they expected to bring to Earth at great expense within the next year or two. This is an especially compelling argument with regard to the USSR, given the more limited capability of its systems to return such samples in quantity. The three Luna missions that ultimately were successful returned with a total of 330 grams of lunar material; if these were meant to be the common property of humankind, to be distributed equally among the hundred or so nation-states then in existence, this would have left only 3 grams for the Soviet Union to keep for itself. Therefore it must be concluded that a property right is inherent in the Outer Space Treaty, and that such a right extends to all entities, public and private.
Often overlooked in the much maligned 1979 Moon Agreement is the explicit property right in Article 11, paragraph 3. Its negative phrasing may be a source of misunderstanding: "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." The logical consequence of the language regarding "natural resources in place" is that once resources are removed from their natural place, the condition that that prohibits their being property is also removed. Resources removed from their natural place may become property. This interpretation was the consensus of the UNCOPUOS Legal Subcommittee, which negotiated the agreement; any other interpretation is baseless.
Where I differ from other commentators regarding the existence in current international space law of a functional right to exclusive control of surface area is in pointing to Article 8, paragraph 3 of the Moon Agreement as containing a much stronger protection of the right to be free from interference. Whereas Article 9 of the Outer Space Treaty merely creates an obligation for states to enter into consultations if there is "reason to believe that an activity... would cause potentially harmful interference," the analogous provision in Moon Agreement reads like a Biblical commandment: "Activities of States Parties in accordance with paragraphs 1 and 2 of this article shall not interfere with the activities of other States Parties on the Moon." I know of no stronger basis in international law for the exclusive control of surface area on a celestial body.
My conclusion is that current international space law is compatible with commercial exploitation of extraterrestrial resources, in that the removal of resources from their natural place is permitted and also has historical precedents. That other commentators disagree is an argument in favor of concluding a new international agreement to clarify the pertinent issues. Also, any such new agreement must go beyond resolving the conflicting interpretations of preceding law, it must add specificity that will create more legal certainty regarding rights and obligations for entities both public and private.
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A brief exchange between myself and Lawrence D. Roberts followed:
Lawrence D. Roberts: Perhaps it's because your interpretation of the
current status of the outer space property regime largely jibes with my
own, but I don't perceive that there is a grand disagreement over the
state of the law. Of far greater concern are the market dysfunctions
that have been created by the prevailing interpretation. Absent a
property rights regime for
in situ resources, there is, at present, a
disincentive to exploit space based resources due to increased legal
risk and greater enterprise financing challenges. Moreover, as the cost
of commercial space inevitably decreases, there will come a point,
absent a legal regime, where exploitation activity is, in effect,
subsidized at a cost to common societal interests.
Thomas Gangale: I think that "prevailing interpretation" depends upon the particular community, and so you raise a good point in this regard, because politics affects markets, but politics is not just about the Big Bad Government, it's also about the public groups that rail against it. Thus the "prevailing interpretation" of certain groups is a distortion that serves their political agenda, creating these market dysfunctions, to the detriment of the goals that these groups profess.
Lawrence D. Roberts: While I concur that many of the proposed "fixes"
undermine the effectiveness of market processes with regard to space
property, there remains little doubt that the current property regime as
delineated by the prevailing international instruments, such as it is,
undermines an efficient market as well. Unfortunately, absent a
precipitating crisis I see no impetus to reform the current treaty
regime.
Thomas Gangale: Well, precipitating a crisis is the easy part... getting the intended outcome is much more difficult!
Thomas Gangale's Lies and Politics
