This Article is written by Khushi Bagaria of MNLU, Mumbai
Introduction
In May 2020, NASA announced the Artemis Accords[i] in consonance with its Artemis programme laying down governing principles for commercial use and exploration of extra-terrestrial resources. The Artemis Accords follow the US executive order 13914[ii] which affirms the “rights of Americans” to partake in commercial exploration, recovery, and use of resources in outer space. This brazen affirmation on a highly contested and ambiguous international issue of law elevates the debate surrounding extra-terrestrial property rights from bizarre claims of ownership of the Moon by entrepreneur Dennis Hope[iii] and of the Sun by space lawyer Virgiliu Pop[iv] along with the “sale” of lunar property over the internet to the possible rise of extensive international discourse on lunar property rights among nations specifically in the context of the Outer Space Treaty, 1967[v].
This article discusses the scope of private ownership and commercial exploration of extra-terrestrial resources along with the power of sovereign nations to facilitate use and exploration of extra-terrestrial land. It also attempts to argue in favour of the development of a balanced international standing on space property rights with respect to the facilitation of investment in space exploration along with international equity in the operation of extra-terrestrial resources through the formation of a constructive international legal framework.
The Outer Space Treaty, 1967
The Outer Space Treaty of 1967 has been signed and ratified by almost hundred countries around the world. It asserts that the great prospects of space exploration are for the benefit of all mankind[vi]. In light of the perspective that outer space resources are for the common benefit of all mankind, it further states that the use of extra-terrestrial resources shall be in the interest of all countries regardless of the extent of their economic or scientific development. Article 2 of the treaty specifically prohibits national appropriation by claims of sovereignty over the Moon or other celestial bodies[vii].
The Outer Space Treaty was signed and ratified by various States including the USA along with the Soviet Union during the Cold War. Thus, the primary objective behind the drafting of the treaty was to limit the prospects of nations being dominant in space exploration by introducing the doctrine of common heritage of mankind previously applied in the Antarctic Treaty 1959[viii], and Law of the Sea Treaty, 1982[ix]. The scope of the Outer Space Treaty explicitly limited to the role of States in space exploration indicates that the legal implications of commercial and private involvement in exploration of extra-terrestrial resources were either unfathomable or far-fetched. Thus, the Treaty does not deal with extra-terrestrial property rights of private individuals and enterprises. Following the Outer Space Treaty, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, informally known as, the Moon Treaty of 1979[x] was proposed. The Moon treaty is also based on the doctrine of common heritage of mankind as Article 11 (5) proposes governance of an international regime over exploration of space resources[xi]. The Moon Treaty states that lunar resources cannot be the property of any State, non-governmental enterprise or individual. However, the Moon Treaty does not hold relevance in international law as it is ratified only by eighteen countries and none of these countries have self-launched human space missions.
Who owns extra-terrestrial land?
The widespread “sale” of lunar property over the internet through entities like Dennis Hope’s ‘Lunar Embassy’[xii] brings into limelight the obvious question on whether the mere registration of a sales deed on extra-terrestrial land can be equated to ownership as the presumption under the transfer of terrestrial property is that the seller has a title over the property in question. This presumption is not applicable in extra-terrestrial property matters as outer space property rights are ambiguous in international law due to the question of sovereignty of States over outer space resources. Furthermore, the general terrestrial claims on unclaimed property require certain qualifications of long-term presence, effective control and some degree of improvement on the property by the entity claiming ownership[xiii]. However, the qualification of long-term presence cannot be practically applied in the same manner to extra-terrestrial land. In the event that effective control and improvement on property are taken into consideration, the standards set for such qualifications and the determination on the meeting of such standards by an entity when carried out by a State authority implies a claim of sovereignty through the exercise of power to grant such property rights, thus, violating Article 2 of the Outer Space Treaty. As a result, a prime consideration on outer space property rights is whether a severance of property rights of individual entities from State sovereignty can take place[xiv].
Similarly, commercial exploration in the case of terrestrial resources is also contingent on State sovereignty as the natural resources within a state territory are owned by the State. Thus, the widely acknowledged bar on States on claiming sovereignty on extra-terrestrial land as per Article 2 of the Outer Space Treaty[xv] cast a shadow on the validity of commercial exploration and use of outer space resources by private entities.
As a result, the determination of the legal status of property rights in space and, subsequently, rights of private entities over the exploration and use of extra-terrestrial resources is contingent on the interpretation of ‘national appropriation by claim of sovereignty’ under the Outer Space Treaty. Specifically, a major point of contention at the forefront of the space property rights discourse is the role of State’s sovereignty and jurisdiction over its citizen’s ownership of extra-terrestrial property.
Establishing a Middle Ground
With the rapid growth of commercial involvement in space exploration since the signing of the Outer Space Treaty, the doctrine of common heritage of mankind has come under severe criticism. This is mainly because the acceptance of such a doctrine in international law implies equitable benefits of space exploration to all States through the development of an appropriate international mechanism irrespective of the economic and technological investments of a nation or its citizens in space exploration creating a rife between developed and developing nations. Moreover, such an international principle creates disincentives for private investment by severing direct benefits to labour and capital in addition to the legal ambiguities already crippling extra-terrestrial investment. Due to such fallacies in the application of the doctrine of common heritage, there have been proposals of its replacement with the doctrine of Terra Nullius wherein "land belongs to no one, until someone has mixed his or her labour with it”[xvi]. This doctrine was extensively applied in property claims dispute, specifically, in the colonization of the Americas with the essential elements of discovery, claim and possession. However, besides the problems associated with the allowance of sovereignty claims in the context of massive inequities in the development of nations, the application of such a doctrine has far-reaching implications on environment considerations, resource exploitation and conflict resolution.
In such circumstances, establishing mechanisms to find a middle ground is essential to make the best possible use of space resources in a just manner. These mechanisms must be rooted in the principle of exclusion of sovereign claims as seen under the doctrine of common heritage of mankind and, at the same time, preservation of property rights of private entities to the extent of facilitation of private investment by severing such rights from State jurisdiction through the development of international standards. Space property rights of private entities can be made contingent to such internationally developed mechanisms setting reasonable standards on environment conservation, property claims, etc. The essential element to such an agreement would be the process of obtaining land by private enterprises wherein the qualification of mutual respect of property claims can be made necessary for owning extra-terrestrial property[xvii]. Along with this, the imposition of sanctions and fines on environment standards violation must be an integral part of the international legal framework. The role of States must be limited to the drafting of such standards and development of an independent mechanism through the establishment of an international institution. Although the enforceability of such standards would be limited to international arbitration and dispute resolution by international bodies due to the minimal involvement of States, the deterrent effect of a standard of international accountability along with international scrutiny associated with space exploration and property rights can create a general yardstick of compliance.
Conclusion
The adolescent nature of extra-terrestrial property rights and exploration makes the development of a watertight international mechanism an arduously meticulous task which can only be refined with the growth of the commercial space industry. However, the task at hand is the concretization of ideal principles such as the doctrine of common heritage of mankind to build the basic objectives for the development of a just and accessible international extra-terrestrial property jurisprudence.
[i] National Aeronautics and Space Administration, The Artemis Accords, Principles for Cooperation in The Civil Exploration and Use of The Moon, Mars, Comets, and Asteroids for Peaceful Purposes, (Oct. 13, 2020), https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf. [ii] Federal Register: The Daily Journal of the United Stated Government (Presidential Document), Encouraging International Support for the Recovery and Use of Space Resources, https://www.federalregister.gov/documents/2020/04/10/2020-07800/encouraging-international-support-for-the-recovery-and-use-of-space-resources#:~:text=Executive%20Order%2013914%20of%20April%206%2C%202020%20Encouraging,for%20the%20Recovery%20and%20Use%20of%20Space%20Resources. [iii] Lunar Embassy, About Our Founder Dennis Hope, https://lunarembassy.com/who-owns-the-moon-dennis-hope/. [iv]Virgiliu Pop, Lawyer Claims To "Own" The Sun, Space Daily, (May. 6, 2002), https://www.spacedaily.com/news/oped-02e.html. [v]United Nations, Treaty on Principles Governing the Activities of States in The Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), (1967), https://media.nti.org/documents/outer_space_treaty.pdf. [vi]United Nations, Preamble to the Treaty on Principles Governing the Activities of States in The Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), (1967), https://media.nti.org/documents/outer_space_treaty.pdf. [vii] Treaty On Principles Governing the Activities of States in The Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), United Nations, Article II, (1967), https://media.nti.org/documents/outer_space_treaty.pdf. [viii]Antarctic Treaty Secretariat, The Antarctic Treaty, (1959), https://documents.ats.aq/keydocs/vol_1/vol1_2_AT_Antarctic_Treaty_e.pdf. [ix]United Nations, United Nations Convention on the Law of the Sea, (1982), https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf. [x]United Nations, The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, (1979), https://media.nti.org/documents/moon_agreement.pdf. [xi]United Nations, The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Article 11(5), (1979), https://media.nti.org/documents/moon_agreement.pdf. [xii] Supra. Note 3. [xiii]Glen Harlan Reynolds, Who Owns the Moon? The Case for Lunar Property Rights (Jun.1, 2008), https://www.popularmechanics.com/space/moon-mars/a3358/4264325/. [xiv] John Adolph, The Recent Boom in Private Space Development and the Necessity of an International Framework Embracing Private Property Rights to Encourage Investment, 40(4) The International Lawyer 964 (2006), https://www.jstor.org/stable/40708019. [xv] Supra. Note 5. [xvi] Jonathan C. Thomas, Privatization of Space Ventures: Proposing a Proven Regulatory Extra-terrestrial Appropriation, 1 Int'l L. & Mgmt. Rev 220 (2005). [xvii] Supra. Note 14. At 982.