The Next Step: Resources & Rights

The Next Step: Resources & Rights

By: Hargun Kaur

IN ECONOMICS AND BEHAVIOURAL THEORY, incentives drive decision-making for rational individuals. Space ventures, therefore, are put in motion to obtain these incentives: the space race, for example, was powered by the promise of scientific advancement and backed by the element of competition. Rationality, however, requires an assessment of opportunity cost— which, by and large, is that the return on investment in the space sector outweighs the costs. This assessment is the basis of episode seven of NASA’s The Invisible Network Podcast, titled “Hunter-Gatherer” [1], and the preface of Rand Simberg’s essay on “Property Rights in Space” [2]. Simberg identifies the incentive of exploration and colonization explicitly, to be scarcity; the extraction of elements and minerals rarely found on Earth and implicitly, commercialisation, technology, and discoveries that will follow.

As appealing as it is to gift someone a lunar land deed, these deeds, blatant cash grabs to sell one acre of land with silver packaging, are undervalued (offensively so to the goddess of the moon) and legally illegitimate. So the need for more concrete legislation in corpus juris spatialis, or space law, concerning the buying and selling of land in space is becoming an increasingly important conversation. Expectedly, the commercialization of space has and will face backlash for the “pillaging” and “contaminating” of extraterrestrial spaces [2]. And understandably so, the word “colonization” carries a distasteful connotation in sociopolitical discussions. This is why having legally defined and clear rights is a shared sentiment in the legal community, despite there being differences in the interpretation of the U.N. treaties [2] - [5]. It is crucial in preventing resources from going undeveloped commercially as they did in Antarctica—a result of the Antarctic Treaty (1959) [2].

Overview of the International Framework

Under the United Nations’ Office for Outer Space Affairs, work on international space law is examined by The Committee on the Peaceful uses of Outer Space. In overview, five international treaties and principles have been developed on “…the notion that outer space, the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation” [6].

In this development, the legal principles, or declarations, include the Declaration of Legal Principles, Broadcasting Principles, Remote Sensing Principles, Nuclear Power Sources and the Benefits Declaration [6]. Amongst the five treaties, the Outer Space Treaty (OST, 1967) [7] is most relevant to the discussion on extraterrestrial property. In sum, the Treaty permits free access and use of outer space, allows scientific investigation, and notes that the exploration of celestial bodies must benefit all States and be performed in compliance with international law. It discusses the claim-free nature of outer space, the duty to abide by the Charter of the U.N., and the forbiddance of activities involving nuclear weapons and militia. Additional discussion points include the States Parties to the Treaty bearing the responsibility to assist astronauts and inform other States of phenomena that could potentially endanger astronauts, the duty of governmental and non-governmental activities falling on their respective States, comments on international liabilities for damages, and the prevention of harmful contamination to extraterrestrial land in the pursuit of exploration.

The remaining treaties elaborate on articles from the OST and additional logistics negotiated by the Legal Subcommittee. The Rescue Agreement (1968) adds to articles V and VIII of the OST, in which States must provide the necessary assistance to astronauts in their rescue, distress, or safe return and the recovering of any launched objects to the launching State [8]. The Liability Convention (1972) adds to article VII the legal procedures to settle damage claims and addresses the launching State’s liability in compensating for damages to the aircraft or Earth [9]. The adoption of the Registration Convention (1975) builds on the U.N. Register of Objects Launched into Outer Space to have a means of identification for launched objects [10]. Finally, the Moon Agreement (1979) lays the groundwork that presides over the exploitation of natural resources found on the lunar surface, emphasising that they are the “common heritage of mankind” [11]. Canada has ratified all of the above treaties, except the Moon Agreement [12].

Space: A Legal Maximum

The OST confirmed outer space to be res communis in nature [5]. Following this establishment is the discussion about what is considered “national appropriation”, and what this implies for the interest of private entities in a time where corporations and business powerhouses are expressing their ambition for space travel. The non-appropriation principle of space and its resources is directly related to the rise of international conflict, so it’s central to the topic of staking property claims. The process of claiming land historically (colonization), would, obviously, fail to meet the criteria of free and equal access of space to all nations. In their paper on the privateering and profiteering of space, P. M. Sterns and L. I. Tennen argue that private entities need not be explicitly mentioned to be included in the appropriation debate because that “…would negate every bilateral or multilateral agreement ever made, since the states party thereto could engage in every activity they agreed to restrict or limit by the convenient subterfuge of conducting the activity through the guise of the private rather than the public sector” [5]. The implication is that private entities are limited in their conduct of space activities but can still participate in them.

Figure. 1. Definition of legal maximums [13].

Circling back to Simberg’s essay, another point of concern in the Treaty is the supervision of non-governmental entities, where “supervision” can take on a meaning at extremes (observation vs. physical control). He then explains The Space Settlement Prize Act, which, if passed, “…[requires] the U.S. government to recognize and legally support land ownership claims…” for private interest on the condition that the claim is a permanent settlement that can be publicly accessed for those who can afford it [2]. These private settlements would not be under the jurisdiction of a terrestrial nation, but individuals will still be subject to the laws of their country. The Act has guidelines for claims to ensure indiscriminate and fair access for serious claimants. It does not have provisions for costs that will arise in defending property claims, but Simberg provides more insight on the Act, and what large claims imply for the various costs that are expected to arise in this undertaking. For NASA, it would require an increase in funding to develop and improve space technologies to be more efficient.

The consensus stands that the OST should be amended or scratched entirely to avoid interpretations of the Treaty obstructing commercial goals. For example, a permanent settlement base would require a collaborative effort from current space-faring nations, and one of the regulatory matters that would need to be addressed is the claim of ownership in a multinational mission [3]. Addressing the difference in the use and meaning of words and how this impacts the interpretation of a treaty is also important. Papers and studies call to expand on and recognize legislation [3] - [5], even suggest an international space code [3] or an agency that focuses on licensing rights specific to space [4]. But according to Sterns and Tennen, the majority of the concerns for private use of space and claims can be addressed with a combination of the treaties with domestic laws.

Private Actors In Space

For some, the focus on property rights is misplaced and should be directed to the exploitation of resources and how to regulate them fairly, similar to how a private entity on Earth can use and exploit resources from land not claimed by them [4] [5]. The primary incentive is profit at the end of the day. Sterns and Tennen argued that a national government would still be violating non-appropriation by recognizing the claims of its citizens on celestial property, even if they themselves did not claim said property. Simberg’s solution to this is a State recognizing the claims of a private entity from another State; a “…you-scratch-my-back-and-I’ll-scratch-yours arrangement” as he calls it [2]. Would countries with developed space agencies and economies have an unfair advantage? Could this lead to alliances that then cause political tension? Perhaps the process of approving projects is the recognition of the claim by a certain number of national governments, excluding the State from which the claim originates.

Where costs and equity are concerned, Sterns and Tennen say that private actors are protected in that they do not have to plan for a defence budget for their project as extraterrestrial spaces cannot be easily accessed. So, if the State which the private entity is under the jurisdiction of does find an issue, they cannot seize the mission by tangible means in space and would subject remedies to national law. This is in the circumstance a license that causes interference internationally is approved, which is not a likely occurrence [5]. Issues with claims also include dealing with infringement, intellectual property rights, and claims for unfair competition [4] - [5] . As long as the claim is authorized, does not interfere with the claims of other states, and the entity is accountable if an interference occurs, it should be possible to make such claims as they relate to the use of the property instead of the ownership of it. Private appropriation, if it occurs, can be resolved on Earth.

Ilie Marin’s study of the status of property rights in space agrees with private actors requiring regulation of materials as opposed to ownership in space, because the State ruling the respective jurisdiction takes on the burden of any liabilities per the OST [4]. The study suggests the allocation of territory in space for fairness, and it similarly comments on intellectual property rights for inventions in outer space, which should be dealt with by domestic laws. An interesting point in this study is that a recognized and valid space settlement can make a profit by selling land titles to those who want it as a keepsake of human achievement. Would it not be fair to grant people the ability to buy ‘less desirable’ lunar property (one that is not rich in resources)? This claim would not be made for the purpose of exploiting the resource on the land, but symbolically owning it.

Concluding Ideas

As technology evolves and improves, so must space law. The legal framework needs to account for unregulated issues such as commercial flights (as they are becoming increasingly feasible with SpaceX launches), space debris (regulating and initiating a clean up plan before it starts interrupting transportation and access), how exports to and from space will be controlled, and how all inhabitants of the Earth will be secured from the risk of nuclear arms [3]. The sociopolitical impact of space activity pertaining to threats to security and communications potentially arising from the goal of a global internet must be discussed. Economic considerations should include more detail on liability, insurance, informed consent of passengers, licensing and safety regulations for crew in space [3]. Evidently there are many specifics the law must develop, and it should do so soon to prevent any future complications. And so, we shall take this next step prepared, in good faith and with respect to the collective interest of humankind.

References

[1] D. Baird and M. Peters, “’The Invisible Network’ Podcast - Episode 07: Hunter-Gatherer”, NASA, 2019. [Online]. Available: https://www.nasa.gov/mediacast/goddard/2019/the-invisible-network-podcast-episode-07-hunter-gatherer.

[2] R. Simberg, “Property Rights in Space”, The New Atlantis, 2012. [Online]. Available: https://www.thenewatlantis.com/publications/property-rights-in-space.

[3] Andrey Ivanishchuk and Maria Markina, “Space Activity Regulatory Matters of Space Law,” Advanced

[4] I. Marian, “The status of property rights in international space law,” Contemporary readings in law and social justice, vol. 4, no. 2, p. 306–, 2012.

[5] P. . Sterns and L. . Tennen, “Privateering and profiteering on the moon and other celestial bodies: Debunking the myth of property rights in space,” Advances in space research, vol. 31, no. 11, pp. 2433–2440, 2003, doi: 10.1016/S0273-1177(03)00567-2 .

[6] “Space Law Treaties and Principles”, United Nations Office for Outer Space Affairs. [Online]. Available: https://www.unoosa.org/oosa/en/ourwork/spacelaw/ treaties.html.

[7] “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, United Nations Office for Outer Space Affairs, 1967. [Online]. Available: https://www.unoosa.org/oosa/en/ourwork/spacelaw/ treaties/outerspacetreaty.html.

[8] “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space “, United Nations Office for Outer Space Affairs, 1968. [Online]. Available: https://www.unoosa. org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html.

[9] “Convention on International Liability for Damage Caused by Space Objects”, United Nations Office for Outer Space Affairs, 1972. [Online]. Available: https:// www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/ liability-convention.html.

[10] “Convention on Registration of Objects Launched into Outer Space”, United Nations Office for Outer Space Affairs, 1975. [Online]. Available: https:// www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/ registration-convention.html

[11] “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”, United Nations Office for Outer Space Affairs, 1979. [Online]. Available: https://www.unoosa.org/oosa/en/ourwork/spacelaw/ treaties/moon-agreement.html

[12] “Status of International Agreements relating to activities in outer space as at 1 January 2020”, United Nations Office for Outer Space Affairs, 2020, pp. 1-5, 10. [Online]. Available:https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html

[13] “Oxford Reference”, Oxford Reference- Answers with Authority. [Online]. Available: https://www.oxfordreference.com/.