Addressing Proprietary Rights Issues in Outerspace

INTRODUCTION

Novel means of access to space are becoming increasingly available, affordable, and less complex and bolder missions to the Moon, Mars, and beyond are already being planned and prepared. Thus, the space sector is a growth sector with a promising economy. Thus, the Space Economy is defined by the Organization for Economic Co-operation and Development as the full range of activities and the use of resources that create value and benefits to human beings in the course of exploring, researching, understanding, managing, and utilizing space. ¹ The Space economy generally deals with public and private actors that are involved in developing and providing space-enabled products and services. ² According to the United Nations Office for Outer Space Affairs, the global space sector is thriving. This is particularly due to the fact that there is a profound transformation of the space sector; also, economic capitals are being invested in the space environment by both government and commercial entities and these investments are on record levels. ³ Not only has the space sector transformed, but it has also played a part in the growth of some other sectors such as energy, telecommunications, insurance, transport, maritime, and aviation among others; this, in turn, adds to the economic and societal benefit of the space to humanity. The dynamics of the space sector has led some analysts to declare that the space industry could become the next trillion-dollar industry by 2040. ¹ As of January 2018, the global space economy grew more than 8%, generating $414.75 billion in space activities. ⁴ The industry and related sectors employ about 120,000 people in the OECD countries. ⁵ In Russia the space industry employs around 250,000 people. ⁶ Research has suggested that the space industry began to develop after World War II, as rockets and then satellites entered into military arsenals, before later finding civilian applications. ⁷ At this time, the launch industry was government dominated. However, in recent times, we have had a growth in commercial/private lunar exploration, although most of the activities of these private companies are closely associated with government programs.

These private companies are profit motivated, and as such they are under pressure to demonstrate technical viability and to fly successful missions to space. Companies are also under pressure from investors, and there is a need for these companies to demonstrate competence and progress toward executing business plans. ⁸

SPACE MINING

It is certain that humans are consuming more resources than the earth can regenerate, thereby creating a depletion of natural resources. However, the possibility of exploiting raw materials from celestial bodies such as asteroids gives a lot of hope to man; for example, it is estimated that there is sufficient Helim-3 present on the Moon to meet humanity's rapidly growing energy needs for many centuries to come. ⁹ Thus, Asteroid mining is the exploitation of raw materials from asteroids and other minor planets, including near-Earth objects. ¹⁰ In addition, lunar mining is an important issue because scientists believe that selenological resources are plentiful and that harvesting them is possible and probably lucrative. ¹¹

However, the question that arises is whether mining the celestial bodies is legal? Article II of the Outer Space Treaty seems to support the argument that commercial lunar mining should be prohibited, even though the Treaty does not say so expressly. What is the purport of Article II of the Outer Space treaty? Article II provides that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use, or by any other means.” The interpretation of this could then mean that no State is entitled under the Outer Space Treaty to extend administrative or judicial authority over planetary areas, and there is no legal basis for individuals to occupy parts of celestial objects or appropriate their resources. ¹¹

It has also been argued that mining requires exclusive claims to some territory in which to mine ¹² and those claims to sovereignty are forbidden under Article II of the Outer Space Treaty. Critics from this school of thought see the Outer Space Treaty as merely an outdated relic from the Cold War era, ¹³ “and argue that if the treaty is giving a liberal interpretation that connotes free-for-all on a first come first serve basis, it could lead to chaos and unequitable sharing of space resources.” ¹⁴

This position is further strengthened with what seems to be a prohibition of appropriating outer space by customary international law; they are manifestations that point to the effect that before the drafting of the Outer Space Treaty, customary international law prohibited appropriation of outer space, ¹⁵ of such manifestations are the provisions of 2 U.N. General Assembly Resolutions that formed the basis of the text of Article II, one adopted in 1961¹⁶ and the other in 1962, ¹⁷ were both accepted unanimously.

According to (Abigail), ¹⁸ this unanimity presents evidence of an opinio juris among the U.N. members that space and its resources were not subject to appropriation even before the adoption of the Outer Space Treaty in 1967. Thus, Article II merely formalized in writing what was already customary international law in practice.^15,18

The Outer Space Treaty cannot be taken to have prohibited mining of the moon and other celestial bodies; as Wrench put it, the provision of Article II is a restriction on sovereign claims to land, not an obstacle to outer space resource extraction ¹⁹ ; according to him, there is a distinction between use and ownership. ¹⁹ No such prohibition is made explicit anywhere in the treaty; interpreting the Treaty in this way is also in accord with the general legal principle that “what is not explicitly prohibited is permitted.” ¹¹ This principle is known as the Lotus principle, which consecrates a freedom to act unless explicitly prohibited by the international law Lotus principle, named after the 1927 case between France and Turkey before the Permanent Court of International Justice. ²⁰

According to the classical formulation of this principle, “whatever is not explicitly prohibited by international law is permitted.” ²¹ The principle consecrates a consensual approach to international law ²² and suggests that a state's freedom to exercise its sovereignty is only limited by prohibitive rules to which the state in question has consented. In the absence of a prohibition, a state is free to act as it sees fit without the need for a specific basis that permits its action. Also, The International Court of Justice likewise applied the Lotus principle when it looked for a prohibition to assess the legality of the threat or use of nuclear weapons in its Nuclear Weapons advisory opinion as well as the legality of a unilateral declaration of independence in the Kosovo advisory opinion. ²³ Thus, it therefore follows that since there is no express provision on the Outer Space Treaty that unequivocally prohibits mining on the moon or other celestial bodies, then with the application of the Lotus principle, mining is thus allowed.

The mischief Article II of the Outer Space Treaty intends to prevent is the potential conflicts over sovereignty rights that might arise due to settlements established in space. Thus, Article II of the treaty should not be taken to prohibit mining of the moon and other celestial bodies. Similarly, Article II only disallows intent to appropriate; thus, a claim to mine should be distinguished from an extension of sovereignty. ²⁴ “Mining without intent to claim sovereignty has historical precedent. Many countries, like the United States, mined minerals from the Arctic Sea's Spitzbergen Archipelago in the early twentieth century without making claims of sovereignty over the island themselves.” ²⁵

Further, an analogy can be drawn from three property regimes developed under the same fundamental constraints as the non-appropriation principle: the United Nations Convention on the Law of the Sea (“UNCLOS”), the Antarctica Treaty System, and the prior appropriation doctrine as applied in United States water law. ²⁶ Under each regime, parties may establish some form of ownership in extracted resources despite being restricted from claiming sovereignty over the underlying land. What is more is that interpreting the treaty to prohibit mining of the moon and other celestial bodies would work against the interest of developed nations and in fact would be in total contradiction of the intention of the outer space treaty, which is that space should be used for the benefit of all humanity. ²⁷ The purpose of this rule in Article II is to declare the traditional ways of acquiring a territory under general international law, namely discovery, occupation, and effective control, ²⁸ inapplicable in Outer Space. ²⁹ It has been argued that the Outer Space Treaty only prohibits “national appropriation,” not supra- or subnational appropriation ³⁰ ; however, it is the writer's opinion that abiding strictly by a literal interpretation of statute may not always actualize the intended justice in the mind of the drafters. The English language is not an instrument of mathematical precision per Lord Denning LJ as he then was in Seaford Court v Estates Ltd v Asher ³¹ ; Lord Denning went on to state that “Act should be interpreted according to the mischief that Parliament was attempting to remedy, with consideration of the social conditions that prevailed at the time.” ³² Thus, to understand the intentions of the drafters of the Outer Space Treaty, we must look at the Mischief the drafters wanted to address. And from the wordings of Article I of the treaty, ³³ if read in conjunction with Article II, ³⁴ the drafters intended to prevent any form of appropriation of outer space by any party whether state, private party, supra or subnational, or other smaller factions. Moreover, other elements of the Outer Space Treaty's negotiating history also point to an implicit prohibition of private appropriation,^15,35 although at the time of drafting the Outer Space Treaty, it was not envisaged that other parties could be involved in space exploration.

OUTER SPACE TREATY ON PROPRIETARY RIGHT IN SPACE RESOURCES

The word “property” has various meanings, depending on the context being used. It may mean ownership or title, or it may mean the “res” over which ownership maybe exercised. “Finally, it may mean an interest in thing less than ownership nevertheless conferring certain rights. In whichever sense the word property is used, the law regarding property law is designed to regulate the relation of persons to things thereby providing a secure foundation for the acquisition, enjoyment and disposal of things.” ³⁶

However, a right is necessarily a creation of law vested with or without formalities, and goes with corresponding obligation of noninterference or revocable by law, or in circumstances prescribed or recognized by law. ³⁷ A right is also a claim to a thing, tangible or intangible. ³⁸ There is a difference between a right and a privilege, as a privilege is a discretionary grant to be enjoyed only at the pleasure of the grantor and withdrawable at his or her instance. ³⁸

The legal question of who owns the resources in space has been an issue of dispute. ³⁹ Although there is no international legal framework that directly answers the question of who has proprietary rights of resources found in space, individual nations have gone ahead to enact national laws allowing private companies to exploit and sell the resources of celestial bodies, thereby conferring absolute title ⁴⁰ in space resources to private firms who mine celestial bodies. An example of such a county is the United States. ⁴¹ The most innovative and disputed part of the U.S. Commercial Space Launch Competitiveness Act is Title IV: The Space Resource Exploration and Utilization Act and the following paragraph in particular:

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter 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.”

There are a lot of legal scholar opinions as to whether and to what extent international space law has been violated or not. ⁴² The starting point for which these acts can be said to be violating international space law would be the violation of the provision of Article I(1) of the Outer Space Treaty states: “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.”

Article I (1) of the treaty has been described as the most important principle of space law, because it permeates its whole fabric and provides a fundamental guide for all activities conducted in outer space. ⁴³ This article of the treaty regarding benefit for all from space exploration is the subject of great controversy, as others suggest that Article I(1) does not satisfactorily establish the rights of states not involved in space exploration in the achievements and exploits of spacefaring nations, that the wordings of Article I express a broad statement of general policy describing a state of affairs yet to be attained rather than a binding legal obligation. ⁴⁴

However, it is relevant for realizing the true legal sense of the Article I (1) provision to know that a proposal to withdraw the sentence referring to “the benefit and interests of all countries,” from the draft paragraph 1 of Article I and to put it in the preamble was rejected by the Legal Sub-Committee. ¹² To the writer this singular act speaks to the intention of the drafters of the treaty, which was to create a treaty obligation with binding force under international law, and not merely a statement of goals and good will. According to Senator Gore, if Article I were a preamble it might be interpreted in one way, but this is not a preamble. According to him, Article I is just as operable as Article IV or Article V or Article VII. ⁴⁵

Since no written reservations to the Outer Space Treaty were made by any country, ⁴⁶ and tacit reservations are invalid under Article 23 of the Vienna Convention, ⁴⁷ it then means that there is an obligation of state parties to carry out their space activities for the benefit and in the interests of all countries.

Another issue with the provision of Article I of the Outer Space Treaty is the issue raised by the Reporter, who was the U.S. representative in the Legal Sub-Committee of the United Nations Committee on the peaceful Uses of Outer Space, at the hearing, and ⁴⁶ “insisted that the ‘common interests' provision was not self-executing. He further stated the rule would have to be developed by means of further negotiations and arrangements on the international level. However, according to G. Marko the point raised by the U.S. representative failed, to take into consideration new developments in municipal jurisprudence and international law.” Even when further legislative or executive implementing acts are needed to permit national courts or administrative authorities to apply a non-self-executing provision, it remains subject to compulsory execution or application in the municipal legal order. ⁴⁶ According to him, a non-self-executing treaty rule is as operable as the self-executing ones, only its application is subject to different executory procedures, involving the legislative and the executive, rather than the judicial department. ⁴⁶ Although the provision of Article I of the Outer Space Treaty needs further strengthening at the international level, nonetheless its obligatory character and binding force remains unaffected by the specific dynamics of its application.

Article I imposes on nations binding obligations to share, even if these obligations remain ill-defined ¹¹ ; this means that the enactment of municipal laws by certain countries must be such that the economic benefits of Space mining would not end up flowing to just one or a few countries, as Dr. Oduntan argues that “Companies may also be allowed to extract certain resources, but the very first provision of the Outer Space Treaty (1967), to which the U.S. is a signatory, is that such exploration and use shall be carried out for the benefit and in the interests of all countries. This therefore prevents the sale of space-based minerals for profit.” ⁴⁸

BENEFIT SHARING

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ⁴⁹ has been ratified by only 13 countries, of which none is a major space-faring nation, hence the limitation to its binding effect. Due to the resentment of major space-faring nations in ratifying the treaty, Sarah Coffey addresses the Moon Treaty as a “failed treaty.” ⁵⁰ Article 11 declares that “the moon and its natural resources are the common heritage of mankind” and, among other things, prohibits “national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.” Article 11 extends the ban against physical appropriation of celestial bodies and their resources to nongovernmental entities, stating, in part, that “neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.” ⁵¹

The treaty further provides in Article 11 that “‘States Parties to the Agreement… to establish an international regime… to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.’ The most controversial of the Treaty's provisions is its ‘common heritage of mankind.’” principle, which according to some commentators, is similar to language in the Outer Space Treaty that space is the “province of mankind.” For example, it has been argued that by the time negotiations for the Moon Treaty had gained momentum, the U.S. generally understood “Common heritage of mankind” and “the province of all mankind” to be indistinguishable and as such they were considered an expansion of the international legal principle of res communis. ⁵²

Although the common heritage of mankind principle is undefined, “subsequent clauses in Article 11 give substance to that provision” by, among other things, (1) establishing an international body for directing the use of outer space's natural resources; (2) declaring that outer space “is not subject to national appropriation… by means of use or occupation, or by any other means”; (3) requiring the equitable apportionment of the benefits from exploitation of the moon, including by countries that do not have exploratory programs; and (4) requiring the rational management of the moon's resources, thereby providing protection and preservation of these resources for the benefit of mankind. ⁵⁰

The “Common Heritage of Mankind” provision is subject to widely conflicting interpretations; some commentators argue that the effect of the phrase is to limit proprietary rights, whereas others argue that it actually reserves resources “to common use in line with the Roman law principle of ‘res communis.’” ⁵³ To Brian Abrams, the “Province of mankind” phrases establishes a “Global Commons,” which means ownership of mankind; he further proposed that the United Nations or other intergovernmental organization acts as the owner of outer space on behalf of all mankind. ⁵⁴ This article particularly agrees with Brian Abrams since the United Nations can be taken to be the expression of the entire human race and has rightly been described as “a bridge between peoples, a network of relations between States.” ⁵⁵ To Carol Buxton, “the common heritage of mankind principle deals with international management of resources within a territory, rather than the territory itself.” ⁵⁶

The lack of uniformity as to what the exact intention of the drafters of the moon treaty was especially in light of the concept “Common Heritage of Mankind” has led to a divide in interpretation between developed space-faring nations and undeveloped nations. However, the developed space-faring nations interpret the principle to mean that “anyone can exploit these natural resources so long as no single nation claims exclusive jurisdiction” over the area from which they are recovered. They argue that developed nations having expended money and time in funding expeditions to space, and making these technologies that help extract resources from outer space, it would be unjust to force them to share the resources or benefits with nations that contribute little or nothing to the success of such missions.

Non-space-faring and less developed countries favor a liberal interpretation that makes clear that international areas designated for the common heritage of mankind do not belong to any one sovereign and thus should not be appropriated by any sovereign, but instead to all nations. Therefore, any resource or benefit derived from the use of celestial bodies should serve all of mankind. According to them, phrases such as “province of mankind” and “common heritage of mankind” create a common property that should be under “common management,” with one group “possessing exclusive rights to exploit natural resources and distribute those resources equally to all nations, regardless of which nations actually funded the effort (either economically or by developing the technology or both).” ⁵⁶

Although this article agrees that developing and non-space-faring nations advocate for “common property” and “common management,” it radically disagrees with the suggestion that non-space-faring nations/developing nations intend a relationship similar to that of master and servant, whereby certain nations possessing exclusive rights to exploit natural resources are involved with funding and exploiting natural resources in outer space and celestial bodies, whereas other nations (the developing and non-space faring) just sit and wait to get allotted resources on an equal basis. The “benefit for all” provision in the Outer Space Treaty is such that is based on the principle of equity, which in this case means reciprocity.

There are a lot of questions that arise from the “benefit and in the interest of all countries” provision found in Article I of the Outer Space Treaty. What is benefit? How do we define it? How can it be communicated? According to Giuseppe Reibaldi, ⁵⁷ “the principle of benefit sharing comes from the root of democratic activities.” This article particularly agrees with this opinion; Article I of the treaty gives every nation (especially developed nations) a duty to be responsible for another. It creates an obligation where nations are not solely focused on individual exploration and use of space, but on how the general global human community can benefit from space. ⁵⁸ This benefit-sharing principle is also evident in the Principles Relating to Remote Sensing of the Earth from Outer Space. ⁵⁹ For example, Principle II states that “remote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development, and taking into particular consideration the needs of the developing countries.” Further, Principle V provides “States carrying out remote sensing activities shall promote international cooperation in these activities. To this end, they shall make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms.” These provisions in the Outer Space Treaty and the Principles Relating to Remote Sensing of the Earth from Outer Space are synonymous to “UBUNTU” African philosophy that places emphasis on being self through others.

The limit and the scope of this benefit to be shared is a question that has not been answered. According to Paxson, ¹¹ the “obligations under article I, implies that a space-faring nation can share whatever and as much or little as it likes so long as it shares something.” While Markoff suggests that Article I (1) requires that once a moon mining entity fully recoups the costs of its mining efforts, all profits resulting from its mining activity must be placed in a common fund that would go to the benefit of “needy peoples,” ⁶⁰ a practical example of what this would mean is that, for example, a company that makes revenue from exploration and exploitation of space would have to share its revenue. This position is particularly disturbing, because industry actors are profit motivated in their space activities. Maintaining such a position as Markoff suggested would affect the economic viability of mining celestial bodies. This article suggests that we draw inspiration from The Nagoya Protocol on Access and Benefit-sharing, ⁶¹ which allows states to negotiate and agree on the terms and conditions of access and use of this resource through the establishment of mutually agreed terms (MAT). This agreement allows for the sharing of benefits arising from the use of the resource with the provider as a prerequisite for access to the genetic resource and its use. Conversely, countries, when acting as providers of genetic resources, should provide fair and non-arbitrary rules and procedures for access to their genetic resources. ⁶² Drawing from this protocol would mean allowing parties to mutually agree terms of benefit sharing as contemplated by Article 1 of the Outer Space Treaty.

The perspective of the multilateralism–unilateralism dichotomy requires an analysis; this deals directly with state response to international negotiation and can have a direct or indirect impact on their willingness to negotiate the international framework for space mining, ⁶³ analogical to the one obtainable under the Nagoya protocol. Kulaga argues that at the heart of unilateralism is individual state interest; thus, where there is no consensus with regard to an applicable legal regime, such as the extraction of natural resources in outer space, unilateralism seems to be, at least for some states, a plausible option. ⁶⁴ Therefore, the doctrine of unilateralism can be considered a useful tool for evaluation of U.S or Luxembourg activities relating to the commercial use of outer space resources. The unilateralism theory explains why states do not always consider a multilateral approach as serving their needs.

However, this article favors a multilateral negotiation on an international regime for space mining and particularly recommends a consideration of the Vancouver Recommendations on Space Mining. ⁶⁵ The concept of multilateralism in international law relates to the doctrine of communitarian norms. ⁵⁸ It involves using space for the benefit of all and ensuring state activities such as space exploration and exploitation are such that they are not centered solely on the interest of a state but as such that take into contemplation and consideration the interest of other nations, particularly developing states based on reciprocity.

Benefit sharing should be based on equitable sharing; this means that any form of benefit sharing should be based on reciprocity. Benefit sharing requires a deeper commitment to reciprocity that acknowledges common but differentiated responsibility. ⁶⁶ According to Jonathan Thomas, “equitable sharing” of outer space profits with non-contributing party is inconsistent with any conception of equity. ⁶⁷

Thus, “Benefit Sharing” should include collaboration between nations; it should be based on board participation. For example, developed nations provide the technology used to exploit ⁶⁸ resources in space, whereas developing nations who do not have the capacity to produce such technologies can man these technologies, and this, in turn, is capacity building for both nations in particular and for the benefit of humanity in general. For example, Nigeria is focused on space application instead of exploration and is working on things such as space food. These are some of the things that non-space-faring nations can bring to the table in discussing a benefit-sharing agreement with space-faring nations.

RECOMMENDATIONS AND CONCLUSION

Like outer space, “the seabed is rich in minerals…collecting and mining these minerals is expensive and requires sophisticated technology capable of reaching the great depths,” thus in 1982 the United Nations Convention on the Law of the Sea (“UNCLOS”) established the International Seabed Authority (“ISA”), a body responsible for managing seabed mining through regulations and licensing. ⁶⁹ The UNCLOS was subsequently renegotiated in 1994 due to its subsequent rejection of several developed countries, ⁷⁰ because of provisions such as the ISA being empowered to create an entity called the “Enterprise,” which would conduct mining operations for the benefit of developing countries alongside private mining operations. The subject matter of the licensing system remains such that it protects against de facto ownership of land resulting from inordinately long periods of occupation. ⁷⁰

Outer space need not be all about dollars and cents, but also a motivation to expand humanity's access to space. And this should be done by taking every person into consideration. After all, there is a close interrelationship between the prosperity of the developed countries and the growth and development of the developing countries; this is synonymous with the Swahili word “Ujamaa,” which exerts that a person becomes a person through the people or community. Thus, the Space community should begin to see Article I of the Outer Space Treaty in the light of promoting humanism and not necessarily see it as a provision that affects profit making. Also given the uncertainties and lack of framework in the Outer Space Treaty, this article suggests that inspiration is drawn from the MAT practices of the Nagoya Protocol, and parties while agreeing on providing benefit should provide fair and non-arbitrary rules and procedures for access to resources.

A mining lease/license can also achieve the aim of Article I of the outer space treaty, in that a periodic payment is made by the party who wants to mine a particular celestial body to an international mining registry. The fee for the mining lease can now be used for the benefit of all. Developing countries should not only be open to “receive benefit” from space activities from developed countries, but also to make relevant contributions to space activities such as providing natural laboratories, food research and production, astronomy, etc.; this, in turn, would make sharing very equitable.