It was reported
recently that two US Senators introduced a bill to establish and
protect property rights on asteroid resources. Leaving aside that
this bill is unlikely to become a law, following the fate of similar
legislative efforts in the past, and that
even if it becomes a law it
will not be technologically possible to implement it in the new
future, it is worth examining whether such piece
of legislation would conform to
international space law.
The following thoughts are without
prejudice to possible inadequacies of the current legal regime and
the need of reform to encourage technological and economic
developments in the space sector.
I.
Legality of commercial asteroid mining
There has been a long-standing debate
among space lawyers on the accordance asteroid mining with the Space
Treaties, mainly the 1967
Outer Space Treaty.
The OST is not absolutely clear on the
issue. The relevant provisions of the OST are the following:
Article I
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.
There shall be freedom of
scientific investigation in outer space, including the moon and other
celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.
Article II
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.
Article VI
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. When activities are carried on in outer space,
including the moon and other celestial bodies, by an international
organization, responsibility for compliance with this Treaty shall be
borne both by the international organization and by the States
Parties to the Treaty participating in such organization.
Article VIII
A
State Party to the Treaty on whose registry an object launched into
outer space is carried shall retain jurisdiction and control over
such object, and over any personnel thereof, while in outer space or
on a celestial body. Ownership of objects launched into outer space,
including objects landed or constructed on a celestial body, and of
their component parts, is not affected by their presence in outer
space or on a celestial body or by their return to the Earth. Such
objects or component parts found beyond the limits of the State Party
to the Treaty on whose registry they are carried shall be returned to
that State Party, which shall, upon request, furnish identifying data
prior to their return.
Thus, (a) the use and exploration of
outer space including the Moon and other celestial bodies are free
(Art. I); (b) no appropriation of the outer space is permitted,
including the Moon and other celestial bodies (Art. II); (c) although
the Treaty is binding only to States, States are responsible for
ensuring that their nationals comply with the Treaty's provisions,
i.e. whatever is prohibited to a State is also prohibited to its
nationals (Art. VI); and (d) the ownership of a manned space object
is not affected by its presence in space (Art. VIII).
The legal debate regards mainly the
interpretation of the term “appropriation”. Proponents of the
legality of commercial asteroid mining fsuggest that the term
“appropriation” does not include extraction of resources – it
concerns only territorial claims on outer space and celestial bodies.
Extraction and commercial use of resources would fall under the
established general freedom of use of outer space. Hence, if no
territorial claims are raised, extraction is free for everyone
interested.
Nevertheless, a closer analysis of the
OST contradicts such view.
Under modern international law,
persons, both natural persons and legal entities, derive property
rights from States. States need to have property rights themselves,
recognised under international law, in order to grant such rights. Of
course, in theory, every State could grant property rights on
everything to its nationals. In practice, however, the effective use
of a property right requires its recognition by other States as well,
which occurs only if such rights abide by international law. This
situation has been highlighted in cases of a State invading to the
territory of another State in violation of international law -
whenever the invading State has granted property rights over the
territory of the invaded State, other States and international
tribunals have refused to recognise (and protect) such rights.
At the same time, a “property right”
confers the power on the one hand to act with an object in every
possible way, including its exploitation with whatever method, on the
other hand to prevent others from using the object. Thus, the act of
a State extracting asteroid resources or authorizing such extraction
by its nationals (under Art. VI OST) presupposes that this State has
the right to do with such resources whatever it wants, i.e. that is
has a property right. This is exactly an act of non-permissible
appropriation. It is an act of appropriation “by any other means”
in the sense of Art. II OST.
The
unreasonableness of the view that
extraction does not amount to appropriation
is underscored,
if we consider extraction through
explosion. An entity could
cause the explosion of a small asteroid and
collect the fragments. However, the lawful
destruction of an object requires
ownership.
In addition, if an entity begins
extracting asteroid resources convinced that it owns the extracted
material, it would necessarily prohibit to other States or entities
access to the mining area, where the deposits of the material lie, in
order to ensure effective exploitation. This is also a form of
appropriation by “any other means”.
Such prohibition of
access could also prevent others from
exercising their own freedom of use. Yet,
the freedom to use outer space and
celestial bodies should be valid for
everyone. Therefore, prohibition of access
to the mining area would
violate Art. I (2)
OST.
Besides, the exemptions to the general
prohibition of appropriation were clearly established in Art. VIII
(2) OST, 1st sentence, “Ownership of objects launched
into outer space, including objects landed or constructed on a
celestial body, and of their component parts, is not affected by
their presence in outer space or on a celestial body or by their
return to the Earth.” This provision aims at ensuring that all
manned space objects remain property of the State or entity that sent
them into outer space or constructed them therein. Admittedly, the
provision may cover also mining facilities, but only the facilities
as such - not the material extracted or the deposits lying
underneath. Natural objects are distinguished from manned objects,
which means that the exemption does not extend to extracted material.
Therefore, such material is not subject to ownership claims.
II. Purposefulness of related
domestic legislation
So, if commercial asteroid mining is
not allowed under international law, what is the purpose of related
domestic legislation? There are mainly three reasons, one obvious,
one less obvious and one more practical reason.
The obvious reason is that such
legislation stirs up the legal debate: new legal arguments may
arise, based on new needs and new capabilities, which could pave the
way for an amendment of the OST.
The less obvious reason is that
through such procedures an international custom could arise. If more
States, especially the powerful ones in the space sector, enact
domestic legislation permitting commercial mining of celestial
objects, and the other States do not react, thus tacitly accepting
the new situation (acquiescence), then an international customary
rule could be formed, according to which authorization of mining is
allowed.
The practical reason is that such
pieces of legislation serve the persons involved in other ways.
Legislators who sponsor such legislative initiatives attract voters,
mainly entrepreneurs. The entrepreneurs in turn attract funding for
their projects by proving that their ideas are both achievable and
legal, since an official legislative recognition has occurred.
No comments:
Post a Comment