What on Earth is Happening to Space Law?

In 2015 and 2017, respectively, the United States of America and Luxembourg enacted bills granting property rights on resources collected in outer space. The potential beneficiaries of these laws are hi-tech companies investing in the exploration and exploitation of space resources. Even though robotized mining of precious metals, rare earths and other raw materials on the Moon or on near-Earth asteroids is said to be at least 20-25 years away, an economy of space resources is already developing at a brisk pace. The stakes are in fact high: mining a few large asteroids may change world market conditions for some crucial raw materials. One may be tempted to see these new developments as intimations, not only of a new space race, this time driven by private actors, but also of the space law to come – and possibly as an occasion to let space law flow back into the main stream of international legal scholarship.

Space law began to take shape as a branch of public international law some time around the late 1950s. In the next two decades it struggled to define its identity by analogy with the law of the sea and the legal regimes of other remote places (yet not as remote) like Antarctica or the deep ocean seabed. The law-of-the-sea analogy has always been a powerful motif in the making of and theorizing about the law of outer space. But it is also potentially misleading, as Rolando Quadri was ready to point out in 1959. Epitomized by the adoption in 1979 and subsequent failure of the Moon Agreement, space law’s arrested development left it with an uncertain, coarse-grained legal ontology that compares unfavourably to that of the law of the sea. While the latter distinguishes between low-tide elevations, islands, and uninhabitable rocks, space law works with an inchoate notion of ‘celestial body’ encompassing anything between the Sun and the tiniest asteroid. The legal status of space resources, both living and non-living, is likewise uncertain and no agreement has as yet been reached as to the exact boundary between airspace and outer space, let alone on the limits of humanity’s jurisdiction to prescribe or on protocols governing the encounter with other sentient beings. Tomorrow’s spacefarers will not be leaning over a legal void. It is clear, though, that some rethinking of the fundamentals is required, as well as some change.

Unilateral initiatives like those recently taken by the US and Luxembourg may well set in motion processes of legal change, no matter if these States describe their acts as fully compliant with the existing law of outer space. Although understandable as a matter of diplomatic tactics, this defensive stance is nonetheless based on a disputed interpretation of the law in force (for overviews and detailed analyses of the different positions see Pop, Tronchetti, De Man, Jakhu et al., Su and Hofmann).

Sovereignty and Property

The fact that a few domestic Bills recognize property rights on space resources does not of course make such appropriations internationally lawful. As shown by the debate that took place during the last meeting (9-20 April 2018) of the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), legal uncertainty and controversy are here to stay. A recent BBC report recounts that the United Arab Emirates wishes to learn ‘from Luxembourg’s legal finesse.’ Article 1 of the Luxembourg Draft Bill stated that ‘space resources are capable of being appropriated in conformity with international law.’ Called on to express an opinion on the draft, the Conseil d’Etat protested that the law is uncertain. In response, the Parliament just stroke the reference to international law out of the final text (‘Les ressources de l’espace sont susceptibles d’appropriation’, full stop), arguing that the appropriation of space resources is lawful under the Civil Code and natural law principles, whilst not clearly ruled out by international law (see here for the full story). However much legal finesse there is in this argument, it cannot do much to fix international law’s uncertainty.

Article 11(1) of the Moon Agreement (MA), which states that ‘the Moon and its natural resources are the common heritage of mankind’, is often read as excluding appropriations by single States or private persons (the Agreement also applies to all other celestial bodies within the Solar system, except the Earth). There is a lingering dispute on whether or not Article 11(3) MA prohibits private appropriation: as it excludes ‘property’ on ‘natural resources in place’, it could be argued a contrario that property claims concerning collected resources are lawful. Be that as it may, the Moon Agreement has received no more than eighteen ratifications and no spacefaring nation subscribes to it. Although in the last five years – which saw the accession of Turkey, Saudi Arabia, Venezuela and Armenia – the number of its parties grew faster than that of the parties to the older Outer Space Treaty (OST), it is from this latter that putatively universal legal standards are usually drawn. With 107 State parties, the OST remains the cornerstone of the legal regime. The meaning of the principles it enshrines remains, however, controversial. Article II OST proclaims that space ‘is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.’ It clearly rules out sovereignty, but what about private property?

Although the OST does not expressly rule out private property, it is often argued that the ban on sovereignty it codified necessarily excludes it, since – so the argument goes – no property right could be validity asserted and enforced outside the protective screen of sovereignty. And since sovereignty was proscribed from outer space, property would be off limits, too. This understanding of the nexus property/sovereignty in outer space, however, is not compelling beyond the obvious case of a State that abusively recognizes real estate or grants mining concessions on celestial bodies.

For a start, there are forms of property other than real estate. If outer space’s legal status is similar to that of the high seas on Earth, and if mining asteroids is like fishing in the high seas, the acquisition of property rights over space resources would need no sovereign mediation. The Bills on space resources adopted by the US and Luxembourg recognise property rights within their respective territories; they do not project State sovereignty in outer space.

It should be noted, however, that it is space law itself that makes some form sovereign mediation compulsory. Article VI OST, one of the pillars of the legal regime that emerged in 1960s, stipulates that ‘[t]he 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.’ On that basis, one may argue that a State which, in the compulsory exercise of jurisdiction under Article VI OST, licences mining operations on a celestial body, would necessarily perform an act – the granting of a territorially-bounded concession – that presupposes the assertion of a sovereign prerogative, at least with respect to the parcel of extraterrestrial land for which licence is granted. But this is not necessarily the case.

When implementing Article VI OST, Luxembourg carefully avoided any suggestion that the government will be granting exclusive rights of occupation and exploitation. It will just licence ‘activities’. This, however, raises the question as to how potential conflicts between investors interested in the exploitation of the same asteroid or parcel of extraterrestrial land should be governed. States might use their power to withhold authorization for de facto granting first comers exclusive rights over given portions of outer space, but in that case disgruntled applicants may challenge rejection as a surreptitious assertion of sovereignty. Moreover, as long as the individual exercises of Article VI powers by States will remain uncoordinated – no rule of mutual recognition of national decisions (not) authorizing activities in outer space is currently in force or being discussed in diplomatic circles – the decision to deny authorization, taken by one State, would not prevent any other State from grating it for the same activity. Interested States may in the future conclude mutual recognition agreements, or even set up a centralised authority, but then again third States would be perhaps justified in seeing all this as an illegal form of (collective) appropriation. Only a space resources ‘clearing house’ whose decisions would be universally recognised could remove the difficulty.

An institutional arrangement along these lines is actually being advocated by the Hague International Space Resources Governance (HISRG) Working Group (a public-private consortium led by the Institute of Air and Space Law of Leiden Law School) in its recent Draft Building Blocks for the Development of an International Framework on Space Resources Activities. An ‘international framework’ should be set up – the Working Group proposed – to ‘enable the attribution of priority rights to an operator to search and/or recover space resources in situ for a maximum period of time and a maximum area upon registration in an international registry, and provide for the international recognition of such priority rights.’ Such protection should also cover rights on ‘raw mineral and volatile materials extracted from space resources, as well as products derived therefrom.’ The Working Group, however, did not tackle the issue of the relative power of domestic and international authorities partaking in this ‘international framework’: should licences granted by a single State be ipso facto inscribed in the ‘international registry’, or should the final authority rest with an international body? The mind goes to the international agency that should have been established under the Moon Agreement, but never was, or to the less known World Space Organization (WSO) whose creation was fostered until 1988 by a dying Soviet Union.

Private Orderings in Space?

Lacking an international authority, a scenario may be envisaged where private actors operating in outer space would need neither the protective mantle of sovereignty nor property rights in space. First comers may actually be interested in asserting property rights (not on the basis of any positive law, domestic or international, but relying, e.g., on the natural law doctrine that property accrues to those who work a previously unoccupied land) and ready to enforce them without the help of a State or even against it, if necessary through the use of force. Taken to their logical extremes, those property claims could pave the way to the formation of space potentates whose historical role would be to challenge the very assertion of extraterrestrial jurisdiction upon which the edifice of planet Earth’s outer space law was erected. But this would be looking too far ahead.

In a not too distant future, private actors may find good reasons not to advance property claims. Since the activities upon which such claims would supervene will necessarily be authorized by a State, as per Article VI OST, there is a risk that the combination authorization/property claim will be seen by other States or companies as a creeping form of appropriation, not too different from those realized by European States through chartered companies up until the 19th century and, again, possibly prohibited by Article II OST. How would conflicts between private actors be regulated, then, in the absence of property rights?

A difference between the formal colonization of Africa in the second half of the 19th century and what may happen as private companies lurch into outer space may provide a cue. Unlike the scramble for Africa, the new space race will in all likelihood be ‘quiet’, as it will be run by a very limited number of companies over an unimaginably vast expanse dotted with uninhabitable rocks. No unilateral or coordinated intervention of sovereign States would seemingly be necessary to avert chaos. Peaceful coexistence in outer space could be ensured by some form of private order built upon non-interference or cooperation contracts passed between private companies and providing for reciprocal engagements not to interfere with one another’s exploitation activities (not property rights), or to carry them out cooperatively and share the proceeds thereof. This private order would exist in a sovereignty-free space. Not in a legal vacuum, though, as it would be linked to the domestic order of the authorizing State and, through it, to international law.

Domestic Procedures, Global Concerns

All a private company would have to do in order to secure property rights on space resources is asking that extraction activities be authorized and report back on them to the licencing State’s competent authorities. Asteroid mining, however, raises issues that the domestic procedures referred to in Article VI OST were not meant to address.

The obligation to set up those procedures was closely linked to the principle of the licencing State’s strict liability for any damage caused by the space objects employed in the activities it authorized. When the OST was drafted, the potentially apocalyptic consequences of mining asteroids – an activity that through hard-to-foresee cascading effects could produce orbital changes that may set large rocks on a collision course with the Earth – was certainly not envisaged. With their new Bills on space resources, States like Luxembourg are therefore reconverting Article VI procedures into decision-making processes whose features (evidentiary rules, inclusiveness, transparency, etc.) and outcomes should be the concern of all States, some of which may see those procedures as radically inadequate to protect the collective interest – or far less apt than, say, than decision-making in the UN Security Council. This seems to be the gist of Russia’s indignant reaction to the US Bill, where it stressed that space mining operations could ‘present a high risk for the whole population of the Earth and should be regulated at the international level.’

When designing new Article VI procedures, States should perhaps seek to establish links between the latter and the two bodies recently set up under the auspices of COPUOS with the task to plan international responses to the threat of impact of near-Earth objects classified as PHOs (Potentially Hazardous Objects), namely the International Asteroid Warning Network (IAWN) and the Space Mission Planning Advisory Group (SMPAG). Although these recent additions to the space governance machinery are mainly providers of techno-scientific expertise, the SMPAG also established an Ad Hoc Working Group on legal issues arising from Earth-rescuing space operations, whose report, expected in Autumn, could at least broach the issue of the relationship between the SMPAG’s mission, international security and space mining.

Redistribution, or Asking for the Moon (Agreement)

If, international security issues notwithstanding, the ultimate capitalist dream comes true – undisturbed mining ‘activities’, no need to claim property rights in outer space, and title to resources brought back to Earth – a further issue, perhaps the thorniest of all, will have to a addressed: redistribution.

Embedded in outer space law — as in the law that emerged from the Third UN Conference on the Law of the Sea — there is a promise of an equitable sharing of the wealth that technologically-advanced States and private investors are going to harvest. Although the political climate has changed since the late 1970s, feelings of entitlement to some form of redistribution have all but waned, as the G77 and China’s latest declaration shows. Moreover, Article I OST seemingly rule out any sidestepping of the issue: ‘[t]he exploration and use of outer space […] shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’ While it is hard to guess how this principle will be implemented, if at all, it is clear that in trying to figure out equitable solutions international lawyers have much to learn from current debates on global justice. Upcoming developments in space law may indeed serve as source of inspiration and testing ground in these conversations.

Assuming that the collective interest formula enshrined in Article I OST obligates States parties individually, States recognising private property on space resources may fulfil their duties by levying a tax on, say, the sale of those resources and using the revenue thus generated to boost their Official Development Assistance. It is clear, though, that such ‘compulsory charity’ cannot make up for the lack of collective management of space resources. The circumstance that two States (Armenia and Venezuela) ratified the long-time neglected Moon Agreement after – and possibly as a response to – the US and Luxembourg’s legislative acts, may signal opposition to unilateral initiatives, and perhaps makes their imitation by other States less likely. Belgium, which took a clear stand against unilateralism in this matter (twice: in 2017 and 2018), believes that the Moon Agreement still ‘provides a good point of departure for establishing a dedicated regime for space resource activities’, a regime that should incorporate ‘the principle of equitable access to and benefit from space resources.’ A country like Indonesia unambiguously advocates a collective approach, but it is not going to become a party to Moon Agreement as long as no spacefaring nation does. The Agreement comes with its own interpretative riddles: does it really rule out private appropriation of space resources pending the establishment of the international regime it evokes at Article 11(5)? Above all,  the Agreement does not foreclose any option as to the shape that that regime could take. Its indeterminacy may turn out to be a strength, however, if it is to become a diplomatic ‘signpost’ around which States that will be likely excluded from the next space race could gather to better defend their interests.

Pending a political settlement, refinement and change of the existing legal regime will likely come from litigation. Litigation will probably start off as domestic, in pioneering States like the US and Luxembourg, as decisions to licence space activities, or to forbid them, are challenged before domestic courts by affected companies and public interest organizations. In a not too distant future, measures prohibiting the import or transit of space resources and related products, or the transfer of money obtained from the sale thereof, could be challenged before the WTO or in the framework of regional trade agreements and economic integration organizations. A perplexed majority within the UN General Assembly might wish to request an advisory opinion from the International Court of Justice. Meanwhile, Laura Murray Cicco, who, as the daughter of one of Neil Armstrong’s close friends, got from the astronaut an extraordinary present – a vial containing dust collected from the Moon’s surface – filed a preventive suit against NASA to have her title to the piece of space memorabilia recognized against the Government’s official position that ‘lunar samples or other astromaterials that NASA collect[s] in space […] are the legal property of the US Government.’ ‘There is no law against private persons owning lunar material’, she contends, in a broad claim that would delight today’s space adventurers. But Murray Cicco went further. As reported by the Diario de Cuba, she also maintains that only private persons could lawfully own space resources, as international law, viz., Article II OST, forbids ‘national appropriation’ of things in or from space by ‘any means’ – not the soundest of arguments, perhaps, but certainly one that is emblematic of our times.