I have been asked for my opinion on the US Commercial Space Launch Competitiveness Act of 2015. I assume that my views on the most controversial section, "CHAPTER 513--SPACE RESOURCE COMMERCIAL EXPLORATION AND UTILIZATION," will be of interest. Gbenga Oduntan and Ram Jakhu have been quoted in the popular media as opposing the Act on the grounds that it violates international law. The problem with shooting ones mouth off to the press is that specifics do not get reported, and indeed, generalities may even be misreported. Therefore I have no idea of the basis for their objections. The burden of detailed argument is on them, and I have little doubt that we will see such argument in the scholarly literature in due course, but at first look, I do not see how the Act could violate international law. I will attempt to present a scholarly argument that is accessible to the interested layperson, to bridge the gulf between the law journal and the newspaper.
Article II of the 1967 Outer Space Treaty states in full, "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."
As for the Act, § 51303, "Asteroid resource and space resource rights," refers to "resource obtained in accordance with applicable law, including the international obligations of the United States." This is a clear reference to international outer space law, which includes,
inter alia, the Outer Space Treaty. SEC. 403, "Disclaimer of extraterritorial sovereignty," states in full, "It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body."
The United States is making no claim of sovereignty in outer space.
The difficulty with Article II is what exactly is meant by "national appropriation." A few writers have supposed that national governments are prohibited from appropriating, but that natural persons and corporations are not prohibited. The consensus of scholars is that this is an incorrect reading, in that it does not take into account Article VI, 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. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty." The gist of this provision is that although natural and juridical persons are not the subjects of the Outer Space Treaty, every natural or juridical person has a nationality under international law, the nation which has jurisdiction over them is the subject of international law, and that nation is on the hook for assuring that its laws are in accordance with international law and that its nationals abide by the law. Whatever is meant by "national appropriation," it applies equally to governments and to their nationals.
The question then becomes, what exactly is meant by "appropriation?" Some writers construe this strictly as the taking of any "thing" and reducing it to ownership as property, while others interpret this liberally as the making of an immoderate claim of property. Does a person have a property right over only the resources extracted from an asteroid, or over the entire asteroid? A natural or juridical person who engages in asteroid mining owns the means of obtaining its resources, which includes both the capital machinery and the labor (transferred in consideration for contracted remuneration) to operate the machinery. John Locke held that a person, in using the resources of the commons, mixes his labor with the soil. He owns his own labor, which he has expended to transform the soil to a more valuable condition, and in so doing, he has created a property right over the soil he has used. A strict construction of the term "appropriation" conflicts with this principle, and it is inconceivable that the government of any capitalist state would have adhered to such an interpretation at the time that it became party to the Outer Space Treaty, or that it agrees to it now. Therefore, the liberal interpretation of the term "appropriation" is the more reasonable one.
Oduntan states, "We can assume that the list of states that have access to outer space - currently a dozen or so - will grow. These states may also shortly respond with mining programmes of their own. That means that the pristine conditions of the cradle of nature from which our own Earth was born may become irrevocably altered forever - making it harder to trace how we came into being. Similarly, if we started contaminating celestial bodies with microbes from Earth, it could ruin our chances of ever finding alien life there."
First of all, how "shortly" can other states "respond with mining programmes of their own?" Years? Decades? Certainly there is plenty of time for lawyers to consider such imagined dire consequences. Also, one wonders how dire the consequences may be. The human race has been mining its home planet at least since the beginning of the Bronze Age, arguably since the Stone Age, yet scientists continue to make new discoveries about the origins of life on Earth. Secondly, Oduntan's argument is persuasive only if the vast majority of the millions of asteroids in the Solar System are at risk of being contaminated by human activity. Thirdly, there are longstanding protocols in place to ensure against the forward contamination of outer space and celestial bodies by human activity, and although these protocols may not be black letter law, the evidence of continuous and enduring state practice is that these protocols are customary international law, something by which Oduntan apparently set a great deal of store. Fourthly, what could possibly be more destructive to evidence of the origin of life elsewhere in the universe other than the universe itself? It is not the Garden of Eden. It has been a very nasty place for the past 13.8 billion years, and one can scarcely imagine that the human race will succeed in making it an even nastier place in the next few years. Lastly, what are the chances of ever finding alien life out there if we never go out there? No human activity will ever be risk-free. If outer space remains pristine but of no earthly use, what is the point? Even this will not ensure that the universe remains in pristine condition if alien life out there is mucking it up. In any case, the pristine conditions of the universe have not existed since the first trillionth of a second after the Big Bang, when the fundamental forces were still unified and matter did not yet exist as particles.
The Houston Chronicle reports: "Oduntan attempts to claim that the notorious Moon Treaty, of which the United States is not a party to [sic], is still binding as "customary law," an odd position to take that suggest [sic] that the parties to an agreement can force their views on those countries that have chosen not to be parties by fiat." I wonder whether Oduntan actually said this, or whether Mark Whittington misunderstood him. The 1945 Statute of the International Court of Justice, Article 38, paragraph (1)(b) refers to "international custom as evidence of a general practice accepted as law." Some writers have found this formulation curious, as it is the practice which is evidence of the emergence of a custom. What is clear is that the definition of custom comprises two distinct elements: (1) "general practice" and (2) its acceptance as law. No treaty can be "customary law " for the simple reason that it is codified law. It may be that Oduntan meant to say that the 1979 Moon Agreement is
ius cogens, "compelling law" that is binding on all, regardless of whether a state is a party to this or that treaty. Not a chance in the center of this or any other planet! The concept of
ius cogens pertains to nearly universal acceptance of certain legal principles, such as the prohibition of piracy, slavery, genocide,
et cetera. If the Moon Agreement had something approaching 190 states parties, one could argue convincingly that it embodied
ius cogens; in fact, it has only 16 states parties, and none of them have the independent means to access outer space (although there are launch facilities in Kazakhstan, they are owned and operated by Russia).
The Moon Agreement is much maligned, in my view because it is much misunderstood. Furthermore, in explaining my interpretation of the Moon Agreement, I too have been misunderstood as opposing property rights in outer space, and I too have been maligned to the point of being likened to slave owner of the Old South. Well, that just ain't gonna get it.
The customary international law regarding property rights in outer space was evidenced by the retrieval of lunar material by American manned Apollo missions and Soviet unmanned Luna missions during 1969-1973. There was never a serious challenge to the ownership of this material by these two states, and in some cases title has since been transferred to other owners. This is evidence that customary international law follows the Lockean principle of mixing labor and soil to create a property right.
Furthermore, the Moon Agreement codifies this custom. The provision that does so, the first sentence of Article 11, paragraph 3, is clumsily worded: "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 key phrase is "in place," and when reworded to be a positive statement rather than a negative one, it becomes clear that natural resources removed from their place may become property. Again, this follows the Lockean principle. Again, it is inconceivable that the government of any capitalist state, including the United States, would have adhered to such an interpretation at the time that it negotiated the Agreement. The US permanent representative restated the provision in such a positive way, and it is documented that no other state contradicted his statement. This is the authoritative interpretation of the provision, as the committee which drafted the Agreement adopted it by consensus, pursuant to Article 31 of the 1969 Vienna Convention on the Law of Treaties, paragraph 2(a), which provides that, after first interpreting the text of a treaty "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context... the context for the purpose of the interpretation of a treaty shall comprise... any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty." Although it certainly could have been written more clearly, the Moon Agreement contains the strongest provision in international law on the existence of property rights in outer space.
