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International Institute of Space Law

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Issue 5, 2019 Expand all abstracts
Article

Access_open Reviewing the Moon Agreement or Amending the Outer Space Treaty?

Views of UNCOPUOS Member States

Authors Irmgard Marboe
Author's information

Irmgard Marboe
University of Vienna, Austria.

    The Hague International Space Resources Governance Working Group has been developing the conceptual “building blocks” for the future development of an international framework for regulating the extraction of natural resources from celestial bodies. One of these building blocks contemplates the potential creation of an international registry for determining the priority rights of an entity to engage in resource extraction on a celestial body (or on a particular part of a celestial body). The purpose of this registry would be both (1) to ensure that such entities can operate without interference and (2) to ensure that such entities operate with due regard for the interests of other operators. This paper proposes a structure for such a registry as well as a process for granting priority rights to a particular entity. The proposed structure and process draws from three existing international registries of different types: (1) the United Nations Register of Objects Launched into Outer Space, (2) the ITU Master International Frequency Register, and (3) the International Registry of Mobile Assets created by the Cape Town Convention on International Interests in Mobile Equipment. Each of these registries serve as helpful examples of how to create an international registry for resource extraction. The UN Register provides an example of how to describe the location and nature of the resource extraction activities. The procedure used when updating the ITU Master Register could be transferred, with some alterations, to maintaining the resource extraction registry. Finally, the Cape Town Convention registry operates in conjunction with priority rules that would work equally well for resource extraction. In addition to ensuring the priority of the right to engage in resource extraction, the Cape Town Convention registry also gives guidance regarding how the registry could be used to protect scientific, historical, and cultural sites on celestial bodies. Eventually, this registry could be expanded to govern the use of land on celestial bodies regardless of the nature of such use, including other commercial operations or even residential housing.


Mark J. Sundahl
Cleveland State University.

Daniel Porras
Daniel Porras, Space Security Fellow, UNIDIR.

P.J. Blount
P.J. Blount, University of Luxembourg.

    The milestone provisions in the Outer Space Treaty designate outer space and celestial bodies as an area beyond national jurisdiction in which national jurisdiction extends only to space objects and persons in outer space. In view of upcoming commercial space mining activities and the recent national legal developments, it is of crucial importance to delineate the different levels of legal authority over space resource activities and to analyze them systematically. What is indisputable, in the first place, is that any national appropriation in outer space is prohibited by Article II OST, while the appropriation of resources is not explicitly mentioned. More specific provisions are formulated in the Moon Agreement. Its Article 11 prohibits the appropriation of resources on celestial bodies and states that such activities — as soon as they become feasible — must be regulated by the international community of States. While this moratorium on resource exploitation is binding only for the 18 ratifying State parties to the Moon Agreement, there is no doubt that the legal authority to regulate over outer space lies with the international community and not with single States. Unilateral legislative acts must conform to existing international provisions as outer space is an area beyond national jurisdiction. Where such explicit provisions are lacking – as is the case with the appropriation of space resources – the lawful scope of national authority must nevertheless be delineated through international regulation as States lack the national prescriptive authority to regulate over outer space and celestial bodies.


Stephan Hobe
Prof. Dr. Stephan Hobe is Director of the Institute of Air Law, Space Law and Cyber Law and Holder of the Chair for Public International Law, European Law, European and International Economic Law at the University of Cologne.

Rada Popova
Rada Popova is a senior lecturer (public international law, EU law and constitutional law) at the University of Cologne and research fellow at the Institute of Air Law and Space Law in Cologne.

    A set of principles are proposed for multilateral agreements to allow real property rights on celestial bodies within the confines of the Outer Space Treaty (OST). They are:

  • Clear affirmation that the “province of all mankind” language of the OST is fundamentally incompatible with the “common heritage of all mankind” language of the Moon Agreement. Although many parties to the latter are also parties to the OST, it should be affirmed as logically impossible for states to be parties to both treaties.

  • Formal recognition of the utter impracticality of the view that whoever mines resources in space must “share any benefit with all states,” a prevailing false interpretation of the “province of all mankind” language in Article II. The notion that the sale of liquid oxygen from the Moon to Elon Musk for a trip to Mars should somehow benefit Botswana is absurd. But for imports of space resources to Earth, one way of dealing with the issue could be a tariff that would fund a development bank, from which nations could borrow to fund their own space projects.

  • A requirement that all parties to the agreements will recognize property claims on celestial bodies of individuals from any nation, including nonparty nations, subject to certain conditions. The U.S. Homestead Act of 1862 could be used as a model, requiring an individual to inhabit a prospective piece of real estate for some designated period of time, and improve it in some sense, in order to gain title. The General Mining Act of 1872 might also be used as a model, regulating mining claims and requiring their purchase for a fee from a governing body, if they are considered to be found on publicly owned land.

  • A distinction between resources extracted in space for personal use, such as harvesting lunar water for life support; resources extracted in space for space commerce, such as harvesting lunar water to create propellant to sell; and resources brought back to Earth from space and for sale in the terrestrial economy.

  • A permissive interpretation of Article IX of the OST, which requires avoiding “harmful contamination” of celestial bodies. There is need for a clear interpretation of this clause that would not preclude, say, humans landing on Mars, yet would also ensure the preservation of heritage sites, such as the Apollo landing sites on the Moon or Viking landing sites on Mars.


Rand E. Simberg
Article

Access_open Regulation of Commercial Mining of Space Resources at National and International Level

An Analysis of the 1979 Moon Agreement and the National Law Approach

Authors Vinicius Aloia
Author's information

Vinicius Aloia
Faculty of Law, University of Helsinki, Yliopistonkatu 3, 00101, Helsinki, Finland.
Article

Access_open Prescribing the Best Medicine for the Struggling Space Mining Industry

An International Regulatory Agency or a New NASA Office?

Authors Michael Weinhoffer
AbstractAuthor's information

    The space mining industry is literally having trouble getting off the ground. Although there is an abundance of valuable mineral resources on the Moon and near-Earth asteroids and supportive legal instruments, no commercial space mining missions have launched as of this writing. Moreover, the two most prominent space mining companies were bought by other companies at the end of 2018, and their space mining plans seem to be on hold. No matter the cause of this stalemate, it is argued in this paper that the near-term establishment of an international space mining authority with regulatory power would be detrimental to the already fragile industry. While over-extraction and ownership of space resources are serious concerns, provisions of the Outer Space Treaty, national legislation, and non-binding international guidelines will sufficiently mitigate the impacts of these legal questions on the industry in the near-term. Rather than implement a binding legal agreement on commercial space mining or establish an international agency to regulate the industry, it is proposed that a space mining technology office be established in NASA’s Space Technology Directorate. Discussions about the legal challenges of commercial space mining should continue, but it is necessary for NASA to assist this industry so that lunar resource extraction will play a critical role in the Artemis program, which aims to achieve a sustained lunar presence by 2028. The Artemis program is steaming ahead, but lunar mining companies, whose achievements will significantly enhance the scientific value of the Artemis program, must not get left behind.


Michael Weinhoffer
Embry-Riddle Aeronautical University, Daytona Beach, Florida, United States.

    An international legal regime that comprehensively governs the exploitation of space resources is currently missing; nevertheless, the United States has enacted legislation specifically disciplining this activity. The US Space Act gives rise to the question of whether a State, through national law, can unilaterally discipline a specific use of commons over which States have joint stewardship, especially if, at the international level, such a use is not comprehensively disciplined and lacks consensus. This paper does not have the ambition to resolve the persisting academic debate surrounding the interpretation of international space law regarding the appropriation and utilization of space resources. Rather, it attempts to provide legal support for the concept that the international community is the sole subject in the position to further specify the rules to govern the use of outer space and celestial bodies, including of the resources thereof. In doing so, the US Space Act is analyzed in light of the key principles of the Outer Space Treaty relevant to the exploration and use of space resources. These principles are further subjected to critical analysis, the outcome of which is assessed against the Moon Agreement provisions. In its conclusion, the paper explores which legal steps States could possibly undertake to ensure a smooth and prosperous development of the space mining industry.


Ermanno F. Napolitano
PhD Candidate, McGill University, Faculty of Law.