In Space, no one can hear you mine: An exploration of Article II of the Outer Space Treaty

Science, Technology, and the Law

In Space, no one can hear you mine: An exploration of Article II of the Outer Space Treaty

  1. Introduction

When President Barack Obama signed the U.S. Commercial Space Launch Competitiveness Act of 2015, he gave legal grounding to an idea that was once science fiction, while creating a legal justification for an emerging space industry. The U.S. Commercial Space Launch Competitiveness Act enables companies to have property rights in resources that they have removed from celestial bodies.[1] However, the law still has to be justified within the framework of the international obligations of the United States. Particularly, U.S. law must conform to those principles found in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967.[2] Under the treaty, specifically Article II, nations are unable to appropriate land on celestial bodies by any means, an idea that may come in conflict with space resource mining.[3]

The Outer Space treaty was created by the Soviet Union and United States during the cold war. The two nations worked together on the treaty in order to deescalate cold war tensions in the field of space exploration.[4] In particular, the two great powers were interested in preventing appropriation of the moon or other celestial bodies. Over time, the treaty has been reinterpreted to serve the needs and goals of a changing world while remaining true to its original principles. This essay will consider whether the U.S. Commercial Space Launch Competitiveness Act of 2015, and its rule on resource mining, is in violation of that treaty. This will be done first through exploring the historical perspectives on property, then the law itself and U.S. interpretations of the Treaty, and finally through the actions of other countries, and the view of the United Nations. Ultimately, while the law may skirt the intended meaning of the treaty, the United Nations will likely accept the arguments made by the United States and find that it can fit within the limitations on appropriations in Article II of the Outer Space Treaty.

  1. Traditional notions of ownership: Hobbes and Locke

Many western notions of early property rights descends from the 17th century thinkers Hobbes, and John Locke.[5] These early thinkers, and their influence, inform views of property ownership through the modern era. In Hobbes’ view, “any commoner taking a thing out of the stock would thereafter treat it as his own but would have to stand ready to defend his possessions against grabbing by intruders. Commoners might try to enhance the security of their holdings by… promising not to interfere with the possessions of others so long as others promised the same in return.”[6] *** In this theory, property rights descended from a general desire to keep safe the individuals labors and the social cost of that activity is to essentially respect the property of others. John Locke had a somewhat different theory,

[P]rivate ownership of goods and land on the basis of the effort or labor which individuals expend to produce goods or to cause the land to produce goods of value to human beings… In the state of nature before governments had come into existence, men all had common access to the earth and the fruits thereof [,] which God had provided for their use. However, although God had given all men an equal right to use the earth’s resources, in order to survive, individual men had to appropriate some of these resources to feed, [sic] clothe and shelter themselves.[7] ***

This idea is called the theory of labor, in that humans put some effort into cultivating the land to derive value from it, and that property law developed to ensure that individuals would gain the fruit of their labor. In its earliest forms, the ideas of property law revolved around the ideas of exclusion, use, and protection, in the form of land. These principles are based on the idea that occupation, and use of land, creates ownership. While these notions have developed since that time, their ideas still color western views of property ownership.

2.1. The Rule of Conquest, and Capture

The courts, in early America accepted the concept of conquest as one of its basis for ownership of the land. In the case of Johnson v. M’Intosh, from 1823, the court stated, “The United States, then, has unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.”[8] Conquest meant control by means of force or war with an original owner. Discovery meant that the first “civilized” group to discover the land held some right in it. These notions served as the foundation on which the United States owned land, because they inherited territory from the Crown of England who had conquered, or discovered the land. Though these concepts have developed over the centuries, they influence how the western world views property ownership, and acquisition.

Similarly, individuals could capture objects on a piece of land without owning it. In Pierson v. Post, the mere pursuit of an animal did not give one the legal right to his capture, but the person who actually laid his hand on the animal gained ownership of it.[9] In that case, the two men were hunting on land owned by neither and the animal that they captured did not affect ownership of the land. While it was not at issue in the case, there is some precedent in common law for the capture of some material on the land without taking ownership of it. Once developed, the notion of ownership and land had changed somewhat, and the 20th century not be different.

In the late 20th century, the international community concluded that there are certain activities, when occurring in areas shared by all mankind, did not affect land ownership. In the convention on the law of the sea, the “ocean floor … as well as its resources, are the common heritage of mankind, and… exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.”[10] *** Beyond the notion of personal property the treaty includes language suggesting the common heritage of mankind, that can be shared and used by mankind, without creating ownership over it. In slight contrast to earlier notions of property, the international community has used this common notion of heritage to understand resources in the late 20th century.

  1. U.S. Commercial Space Launch Competitiveness Act of 2015

 

In the spirit of acquisition, and utilization of land, the United States has concerned itself with the acquisition of property and material resources in space. In 2015, Congress passed the “U.S. Commercial Space Launch Competitiveness Act of 2015”[11] Broadly speaking, the act is intended to, “facilitate commercial exploration for and commercial recovery of space resources by United States citizens…discourage government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration for and commercial recovery of space resources in manners consistent with the international obligations of the United States.”[12] *** The obligations that the law refers to are America’s obligations under the Outer Space Treaty, and Article II in particular. The law allows for, “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource.” [13] The law, therefore, being designed to allow companies to have ownership over the materials they gather on asteroids, gives property rights to minerals taken from celestial bodies despite the provision against the acquisition of land under Article II.

The 2015 law further states, “under this chapter shall be entitled to any asteroid resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”[14] The law essentially allows for private U.S. entities, who are acting under the jurisdiction of the United States under Article VIII, to land on an asteroid and capture resources such that they may have ownership over that captured resource.[15] The law creates property rights for materials gathered from asteroids, without claiming ownership or appropriating any land. While this stands in contrast with the principals of acquisition under the rule of conquer or a Hobbes-esq concept of labor, fits roughly within a rule of capture conceptualization of ownership. Like the capture of a rabbit on unowned land in Pierson v. Post, the corporations of the United States will seek to capture the material within an asteroid. Though this legal connection is tenuous, because minerals and objects on the surface of the land are fundamentally different, the law’s practical purpose is to create capture of mineral rights in a similar manner to the Post, case.

3.1. Policy Justifications

The United States justifies this taking of resources, through the lens of Article II obligations under the Outer Space Treaty, by stating that any of these activities does not make a claim of sovereignty. According to the House Committee on Rules, the United States’ declaration in the 2015 law does not violate its international, in part through the statement that, “removing, taking possession, and using the in situ celestial resources, including in-situ asteroid resources, is not to be construed as an act of national appropriation by claim of sovereignty.”[16] The views of the Committee further note the other two methods of appropriation in Article II and that the United States Law shall not be construed to violate either of those as well.

Beyond the importance for such a law from a policy perspective, the committee notes that U.S. courts have already declared that a state may own pieces of rock from the moon.[17] The committee cites U.S. v. One Lucite Ball, in which the Southern District of Florida District Court upheld the right of Honduras to assert ownership over a moon rock.[18] The committee further argues that several countries have taken materials from celestial bodies, including Russia, and Japan.[19] Seemingly, however, the issue of moon rocks is somewhat colored by the fact that those moon rocks were originally taken for scientific purposes, which would be allowed under the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979), in Article VI, under section 2.[20] The 1979 agreement, which the U.S. is not a party to, states that, “States Parties shall have the right to collect on and remove from the moon samples of its mineral and other substances.”[21] However, because the United States is not a party to this agreement, Congress could not base its ownership on scientific purposes. Their other argument, that the actions of U.S. companies in space does not constitute an act of appropriation, is based on previously held U.S. interpretations of the Outer Space Treaty.

3.2. The 2015 Act’s Congressional Justifications

When the 2015 act was passed, the Members of the United States Congress was concerned that its actions would be considered a violation of the United States’ treaty obligations under Article II alone In their majority view, Congress justified the language of their bill, on past interpretations of Articles I and II. This was done by only giving property rights in the materials and not the celestial body in itself, creating essentially no property rights that would constitute an appropriation.[22] In the minority view, this activity would be a clear violation of Article II’s prohibition on national appropriation by other means. Congresswoman Johnson, who wrote the house minority’s statement, expressed concern over the lack of definitions in the act and ambiguities that may cause issues under Article II. The Congresswoman noted, “here has been no legislative hearing on this bill, or even a subcommittee markup, nor have we gotten the views of the Administration, including those responsible for tracking our international treaty obligations”[23] Such ownership would have implications for ownership, and appropriation but this is remedied by the U.S. interpretation of Articles I and II.                              3.3. The U.S. State Department JustificationsThe United States State Department has argued, that the Law comports with its longstanding interpretation of the Outer Space Treaty. In a statement by Gabriel Swiney to the Legal Subcommittee of the UN Committee on the peaceful uses of Outer Space, Swiney notes that there has been a longstanding U.S. position on space resources under which the U.S. law would be valid. She notes that U.S. Secretary of State Cyrus Vance, in the late 70s, posited that the prohibition on natural appropriation does not, however, limit “ownership to be exercised by States on private entities over those natural resources which have been removed from their ‘place’ on or below the surface of the moon or other celestial bodies.”[24] The U.S. therefore does not argue that they will gain ownership of the land itself in space but to instead, “retain ownership interests in their equipment, including whatever non-interference rights flow from those ownership interests, even though they will not acquire ownership in the ground beneath their equipment.”[25] The notion of removing materials from their place comes from the U.S. interpretation of Article I, “Such removal, Secretary Vance further explained, is permitted by Article I of the Outer Space Treaty, which provides that “outer space… shall be free for exploration and use by all States.”[26] The U.S. law, therefore, is somewhat limited in its scope to those materials extracted, while not interfere with the rights of others to land in a similar place and extract resources. Gabriel Swiney further reiterates that these notions are based on the United States’ longstanding interpretation of Articles I and II, which the U.S. considers the, “better reading of the Treaty.”[27] *** Though the notion predates Secretary of State Vance, his argument was that, “this ‘non-appropriation’ principle applies to the natural resources of celestial bodies only when such resources are ‘in place’… ownership to be exercised by States or private entities over those natural resources which have been removed from their ‘place’ on or below the surface of the moon or other celestial bodies… [is permitted because] outer space including the moon and other celestial bodies, shall be free for exploration and use by all states.”[28] *** The U.S. reinterpretation used the meaning of use in Article I of the Treaty to characterize U.S. activities under the law, rather than the meaning of use in Article II.               4. Concerning Article II and the 2015 Law’s legality under the treaty

When it was written, the Treaty on Principles Governing the Activities in the Exploration and use of Outer Space Including the Moon and other Celestial Bodies was envisioned to foster open exploration in space. Article II, of that treaty, was intended to enforce part of that vision. The principles laid out in Article II were laid influenced by United Nations resolution 1721 (1961), which stated that, “Outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation.”[29] The resolutions writers incorporated those ideas into Article II of the treaty, “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.”[30] The treaty language in Article II is broad, and encompasses many activities, so that no party to the treaty could take territory on celestial bodies to control or exclude others.

The language of Article II intends to prevent many traditional and historical national activities in space that would hamper the freedom of others to explore that space. The active term of the article is, “national appropriation,” which function to protect the moon, and other celestial bodies. This means, broadly, that no party to the treaty may nationally appropriate, or take, any territory in space. The article further defines the means by which these territories may nationally appropriate, in broad terms. National appropriation is defined as, use, occupation, and any other means.[31] This would clearly preclude the occupation of land with the intention of creating a claim of ownership, or to use the land to create a claim of ownership, or any other means to nationally appropriate territory. Any activity, whether by governments or private actors is a national activity under Article VII, meaning therefore that private actors cannot appropriate.[32] These broad prohibitions would preclude many actions, but it is unclear whether these preclusions include resource acquisition. Because these activities intend to create ownership, they would traditionally violate Article II. However, because the U.S. intends to create ownership in a resource taken from the land, and not the land itself, the law has skirted around the intended preclusions of the treaty.

4.1. U.N. Response to U.S. Activities

In response, the UN has noted the importance of a formal response to the issues presented by the U.S. Law, but has come to no conclusion yet as to its place within the framework of the Outer Space Treaty. There has been no agreement by all member states, and the UN has stated, The view was expressed that giving reassurance to non-governmental entities having aspirations to engage in resource utilization and extraction from the Moon or any other celestial body was important in the interests of legal certainty, but that a national initiative to that effect did not represent a final agreement for all States unless the whole community agreed. The delegation expressing that view also put forward that existing international mechanisms, such as those regulating international fisheries or seabed mining, might be instructive in this regard.[33]In essence, the United States’ efforts do not create a conclusive solution, but the international body has not invalidated it either. The document, however, does express openness to the idea suggesting that they may base future rules on those for international fishing. Such systems allow nations to engage with otherwise uncontrolled territories in a manner that does not create an appropriation.[34] The UN expressed one major and minor concern about the theoretical practice. Its minor concern was that, “national legislation on resource extraction and use did not preclude a multilateral approach or mechanism being developed in the future, but that at present such a multilateral approach would be premature… given the uncertainty about whether such activities might become technically or economically viable.”[35] *** Its major concern, however, was that laws like the United States’ may harm, or limit access to other nations in a manner that would spurn the intentions of Article II. The Final Report of the Committee stated,The view was expressed that a greater understanding among States of the principles set out in the Outer Space Treaty was needed, as was a multilateral approach to addressing issues of resource extraction from the Moon and other celestial bodies, to ensure that States adhered to the principles of equality of access to space and that the benefits of the exploration and use of outer space were enjoyed by all humanity.[36]In response to such concerns, Gabriel Swiney had succinctly stated previously that, “[t]here is room out there for us all.”[37] The U.N. remains undecided on the issue.                               4.2. The Grand Duchy’s responseLuxembourg, a major player in the international space community, has drafted a law in late 2016, early 2017 that serves as comparable legislation to U.S. activities. It is the first country to do so, according to the official Luxembourg Government site.[38] In short, the translated version of the Luxembourg law states that, “Space resources are capable of being appropriated.”[39] The law uses the term appropriation though it refers specifically to resources and not to land. The law makes no statement specifically to the issue of appropriating land. Compare this to the U.S. law, which states specifically, “It is the sense of Congress that the United States does not, by enactment of this Act, assert sovereignty or sovereign or exclusive rights or jurisdiction over, or ownership of, any celestial body.”[40] Neither the Luxembourgian law, nor U.S. Act explicitly allows for the appropriation of land on celestial bodies, instead referring only to resources that are removed from the celestial body.                5. Conclusion: The Near FutureThough the international community has made no official conclusions about the legality of either law, there is nothing to suggest that either will be invalidated. The treaty has survived for 50 years, and the international agreement that it represents has kept space a relatively peaceful place. Though these laws both alter the meaning of appropriation of land, and challenge the law in some ways, they were designed with the treaty in mind. It is more likely that the international community would validate these laws under a framework similar to fishing in international waters, as the U.N. has already implied, rather than contradict two of the major powers in space development. It would therefore seem logical that while these laws may slightly twist the meaning of Article II from a broad definition of appropriation to a more concise one, they will most likely remain valid in the near future.

[1] U.S. Commercial Space Launch Competitiveness Act, H.R.2262, 114th Congress (2015).

[2] Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967,

610 U.N.S.T. 205.

[3] Ibid, at art. II.

[4] Robert. Wickramatunga, United Nations Office for Outer Space Affairs The Outer Space Treaty, http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (last visited Dec. 13, 2017).

[5] Krier, J. E. (2009). Evolutionary Theory and the Origin of Property Rights. Cornell Law Review, 95(139), 139-159, 149. Retrieved December 13, 2017.

[6] Ibid, at 149.

[7] Vaughn, K. I. (1978). John Locke and the Labor Theory of Value. Journal of Libertarian Studies, 2(4), 311-326. Retrieved December 13, 2017.

[8] Ibid, at 21.

[9] Pierson v. Post, 3 Cai. R. 175, 1805 N.Y.

[10] Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

[11] 51 U.S.C. §§ 51301-51303 (2015).

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, including the Moon and Other Celestial Bodies, art. VIII, Jan. 27, 1967,

610 U.N.S.T. 205.

[16] H.R. Rep No. 114-153 (2015).

[17] Ibid.

[18] United States v. One Lucite Ball Containing Lunar Material, 252 F.Supp.2d 1367, 1379 (S.D.Fla.2003).

[19]  H.R. Rep No. 114-153 (2015).

[20] Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, including the Moon and Other Celestial Bodies art. VI, Jan. 27, 1967,

610 U.N.S.T. 205.

[21] Ibid, at art. VI.

[22] 51 U.S.C. §§ 51301-51303 (2015).

[23] H.R. Rep. No. 114-153 (2015).

[24] Gabriel Swiney, Agenda Item 14: Potential Legal Models for Activities in Exploration, Exploitation and Utilization of Space Resources 5 (2017) (Unpublished Comment) (Provided by employees of the U.S. State Department).

[25] Ibid, at 6.

[26] Ibid, at 5.

[27] Gabriel Swiney, Agenda Item 14: Potential Legal Models for Activities in Exploration, Exploitation and Utilization of Space Resources 5 (2017) (Unpublished Comment) (Provided by employees of the U.S. State Department).

[28] Ibid, at 5.

[29] G.A. Res. 1721 (XVI), (Dec. 20, 1961).

[30] Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, including the Moon and Other Celestial Bodies art. II, Jan. 27, 1967,

610 U.N.S.T. 205.

 

[31] Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, including the Moon and Other Celestial Bodies art. II, Jan. 27, 1967,

610 U.N.S.T. 205.

[32] Ibid, at art. VII.

.

[33] Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. On Its Fifty-Fifth Session, U.N. Doc. A/AC.105/1119 (2016).

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Gabriel Swiney, Agenda Item 14: Potential Legal Models for Activities in Exploration, Exploitation and Utilization of Space Resources 7 (2017) (Unpublished Comment) (Provided by employees of the U.S. State Department).

[38] Luxembourg is the First European Nation to Offer a Legal Framework for Space Resources Utilization, SpaceResources // Luxembourg, http://www.spaceresources.public.lu/en/actualites/2017/Luxembourg-is-the-first-European-nation-to-offer-a-legal-framework-for-space-resources-utilization.html# (last visited Dec. 20, 2017).

[39] Draft law on the exploration and use of space resources art. 1 (Jul. 13, 2017)  (Text of the Draft Law) (English translation of the French original text. The French version prevails).

[40] U.S. Commercial Space Launch Competitiveness Act, H.R. 2262, 114th Cong. (2015).

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