Resources & Ownership in Space: The [US] Space ...

Resources & Ownership in Space: The [US] Space Act 2015

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Mukesh Chiman Bhatt School of Law, Birkbeck College, University of London presented 1st March 2016: APEX-‐BBK 1

01-‐Mar-‐2016 APEX seminars -‐ Birkbeck

Overview !   Questions & context !   The US Space Act 2015 !   The IISL !   Historical practice !   Policy implications !   Future work

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Disclaimer !   Exploratory (no pun intended) research !   Not !   legal advice !   legal opinion !   legal decision

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Introduction

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scope !   Essential Resources in Space !   Rights to water and air/oxygen or precursors thereof for survival and colonization …

!   Overlapping territorial and resource rights !   Land, mineral and natural resources and rights !   Territory: land (celestial body) & non-‐land (outer space)

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law vs. law !   Relation of national to international legislation !   Conflicts between national and international law !   Status and ratification or abrogation of treaties !   Circumstances may change, so treaty no longer applicable !   rebus sic stantibus

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Outer Space Law !  

OST 67 : NO “sovereign national appropriation”

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OST 67: “use” and exploration on “celestial bodies” (inc. NEO asteroids)

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Moon 79: “use” of resources by installations for scientific & other purposes

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Note that the OSTs appears to prohibit, albeit through interaction with other international law, colonisation by a sovereign nation

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There is no prohibition on sovereign nations assigning proxies -‐ chartering, subsidising, or otherwise tendering tasks to private or other enterprises, and the sovereign nation *may* remain responsible for actions !   !  

Therefore necessity of assigning or transferring rights of use to proxies Economic policy helps space economy develop [terms in quotes subject to interpretation]

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The US Space Act 2015

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US Space Act 2015 !   US Commercial Space Launch Competitiveness Act (H.R. 2262) !   Merges 4 previously proposed acts ! ! ! !

       

1. Private Aerospace Competitiveness & Entrepreneurship 2. Commercial Remote Sensing 3. Office of Space Commerce 4. Space Resource Exploration & Utilization

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US Space Act 2015 !   Long title states it is to: … facilitate a pro-‐growth environment for the developing commercial space industry by encouraging private sector investment and …

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Title IV § 402 !   Facilitates and allows US citizens to engage in the “commercial exploration for and commercial recovery of space resources” !   Discourages “government barriers … in the United States of economically viable, safe, and stable industries for commercial exploration” !   Promotes this … “free from harmful interference, in accordance with the international obligations … and subject to authorization and continuing supervision” by the US Federal government [email protected]

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Title IV § 51303 !   US citizens engaged in commercial recovery of a resource “shall be entitled to any asteroid resource or space 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.”

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Title IV § 403 !   Specifically does not assert sovereignty, or sovereign or exclusive rights or jurisdiction over, or ownership of any celestial body

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Space Act !   asteroid or space resource NOT asteroid or space !   'space resources’ include ... water and minerals !   But not biological life

!   assigns and transfers “property rights”, not “property” to commercial enterprise !   Ownership of rights, not of property !   Allows creation of secondary corporate structures

!   US law: mineral and natural resource rights are separate from land rights

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The International Institute for Space Law

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OST 67 !   not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means !   Free exploration and use specified !   No discrimination !   Equality !   In accordance with international law

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IISL on OST 67 !   Does “free use” include the right to take and consume non-‐renewable natural resources (inc. minerals and water)? Note difference between production (for use or further sale) and consumption (use, but not further sale)

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Moon 79 article XI !   1. … natural resources are the common heritage of mankind !   3. … natural resources in place, shall [NOT] become property [… or] create a right of ownership !   8. … inform … the public and the international scientific community … of any natural resources … !   International regime to ensure equitable sharing based on contribution

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IISL on Moon 79 art. XI !   absence of an international regime !   Suggests moratorium on use of natural resources !   Can be interpreted as no such moratorium

!   The US has not ratified the treaty !   Only 16 States have ratified this treaty !   Article XI does not have status of customary law !   i.e., is not yet usual or accepted practice

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IISL statement !   Absence of clear prohibition of resource production !   => Use of resources is permitted

!   US Space Act !   This is one possible interpretation

!   Do other states agree? !   Independent of claims of sovereignty !   Sovereign rights not claimed by US !   Citizens entitled only in accordance with applicable law, US international obligations

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IISL conflict !   Issue remains open !   Disagreement by nations with US !   No official statements yet, except Luxembourg

!   Space lawyers !   4 major law practitioners & researchers disagree !   (von der Dunk, Jakhu, Oduntan, Tronchetti)

!   News media !   ~244 (!) (global) media commentators disagree with US !   US space industry lobbyists and commentators laud US

!   Is IISL biased?

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Lessons from the past

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Overlapping concepts !   Sovereignty : jurisdiction : control !   Ownership : possession : use !   Freehold : leasehold : tenancy Certain rights and responsibilities !   Analogies (limited) !   Russell Estate : University of London : Colleges !   U of L : UCL : BBK

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background !   Different societies, different notions, often collective, common, corporate, owned by god (or gods, nature spirits) and therefore by no-‐one-‐person (no man’s land, terra nullius) !   Natural rights: God-‐given mankind’s dominion over Nature – Locke from the Christian Book of Genesis) !   In the West, the owner has to be a legal person !   First possession

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Historical analogies !   Separation of ownership & possession !   Line of Tordesillas (1524)

!   Res (terra) nullius (1450 onwards) !   Uninhabited !   “barbarous” natives !   No rights of sovereignty or negotiation !   Confirmation by Europeans amongst themselves

!   Land enclosures (17th C.) and zamindars (18th C.)

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Possession & (sovereignty) How do you get possession? !   Discovery by sighting not sufficient !   Landing required !   Effective occupation and control not necessary !   Purchase by proxy !   Symbolic acts ! ! ! !

       

Erection of cross or monument cutting of flora Inscription, coat of arms Artefacts left behind !   coinage

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Jurisdiction How do you extend effective control? !   Dutch !   Purchase by proxy (Manhattan)

!   Russia and Vedic Hindus (Alaska & Siberia and India) !   Burial of inscribed bronze plate

!   US !   Direct purchase (Louisiana & Alaska)

!   England !   Turf and twig collection Is sample return a symbolic act of possession and control? [email protected]

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Privateers !   Captain Cook !   Obtain or replace sovereignty by any means

!   Trading companies !   Authorised directly by charter !   Authorised indirectly by subsidy

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Modern day !   Moon landings: symbolic possession by flag !   Disavowal of sovereignty – Russia (Lunik II, 1959) !   No disavowal of sovereignty – US (Apollo 11, 1969)

!   China !   South China Sea – the Spratlies and artificial islands

!   USA !   Declaration of Pacific maritime reserves

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Possible models !   Samples with US or other countries !   Nation State -‐ Earth (sovereign possession & use) !   International waters & sea-‐bed (international use) !   International territory -‐ Antarctica (user jurisdiction, international use, 7 nations claim) !   Svalbard (Norwegian sovereignty, international use) !   ISS (launching state jurisdiction, international use) !   ?

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The permanent marquee in the empty Quad

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US Space policy !   Legislation is engine for development of space economy !   !  

Encourage private participation through charter, subsidy &c. Allows of use of corporate structures

!   Assuming the Space Act 2015 is in conformity with OSTs ! ! ! ! !

         

Facilitates directly or indirectly possession through use Extends jurisdiction and administrative control Effective possession and eventual claim/colony Creeping sovereignty through use Eventual establishment of independent state in space (grant of title)

!   Historical precedent: !   !  

Homesteading act Prospecting legislation

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Future work !   Use of corporate structures !   Regulation by international or other authority !   Luxembourg and its favourable regime !   Conflicts with EU and ESA, and other nations !   Post-‐colonial analyses !   ? Mukesh Bhatt -‐ [email protected] [email protected]

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