A pathway for off-planet resource utilization for the private sector
“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.” — Article II, 1967 Outer Space Treaty
This article effectively prohibits exercise of territorial sovereignty in Outer Space by nations, however, No explicit provisions exist concerning such territorial rights for private citizens.
Advocates for private-sector property rights have cited as justification for their position the lack of direct prohibition of such rights. considering evidence provided in other treaties addressing property rights in general and, more specifically, those beyond national, it can be deduced that, had there been an intention to exclude the right to property of natural persons, the Outer Space Treaty would have stated this to a clear extent.
For their part, opponents argued that, with no entity to grant property rights and no direct provisions favorable to private citizens, property rights are hindered from forward progress. These arguments ultimately fail in the face of the 1948 Universal Declaration of Human Rights, Article 17: “Everyone has the right to own property alone as well as in association with others” (UDHR Art. 17, p.1) , and “No one shall be arbitrarily deprived of his property” (UDHR Art. 17, p.2)
Conceptually, future evolution of an international schema for realization of such rights in Outer Space is wide open.
Unilateral Efforts
Momentum on the national level began to gain momentum in favor of the private sector, with the passage of U.S. Legislation favorable to property and mineral rights recovered by private entities (H.R.2262 — U.S. Commercial Space Launch Competitiveness Ac Nov 2015) and similar legislation within Luxembourg.
Inevitably, the question arose as to whether these acts of unilateral legislation in and of itself constituted national appropriation, prompting this response from Roscosmos in 2017:
“Like the law adopted in 2015 in the United States, the law of Luxembourg on the extraction of natural resources by private companies, in the opinion of the Russian Federation, compromises one of the fundamental principles of international space law — the principle of national non- appropriation of outer space ..” (Izvestia)
Bilateral Efforts
The US Executive Order Encouraging International Support for the Recovery and Use of Space Resources served to produce a move toward bilateral negotiations by way of the Artemis Accords, where partnerships with nations are centered around favorable resource utilization with respect to the Outer Space Treaty framework.
“The Artemis Accords reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty, with specific emphasis on Articles II, VI, and XI.”
This has been met with a snap-back from the international community. The Canadian Outer Space Institute has placed an open-signature letter in favor of multilateral negotiations within the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS) for a regime to manage off-planet resources.
At the core of this movement is the Vancouver Recommendations on Space Mining. Buried within the Vancouver Recommendations is the call for installation of the same regime in place over deep seabed under international waters responsible for the devastation of the seabed mining industry.
“VII. The negotiating states should:
1. Consider the creation of international governance mechanisms, taking into account models or analogies from other areas such as deep seabed mining.”
Developments in the International Arena
On the international level, forward progress has been made toward the facilitation of private sector interest in future legislation pertaining to Outer Space.
The Hague International Space Resources Working Group has put forth Building Blocks seeking to open dialogue with those private and public sector entities specifically working on developing a framework for resource utilization across the world.
“Private sector participants and governments should be involved in the designation or establishment of an international body responsible for the identification of best practices of the utilization of space resources.” (See: ISBN #9789462361218, section iv, Page 130)
The trend toward the consideration of private sector entities as a factor in negotiations for a future framework is of the utmost importance.
Private Sector-Led Efforts
On the private sector level, efforts are underway to approach the competent authorities in multiple nations’ determination in official capacity that private sector projects relating to resource utilization upon celestial bodies by private entities do not constitute violation of the Outer Space Treaty.
The focus here is to render favorable interpretation of the current treaty framework governing Outer Space with respect to private property rights/resource utilization, and do so: Without litigation; Under the current legislation; Free from accusation of any violation of the ‘non-appropriation’ principle within the Outer Space Treaty.
If successful, these actions should lay to rest any notion that private property rights were prohibited by the 1967 Outer Space Treaty for good.
United Nations Committee on Peaceful Uses of Outer Space
Finally, the question of resource utilization has risen at the source of space legislation, within the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS).
From the Report of the Legal Subcommittee on its fifty-seventh session, held in Vienna from 9 to 20 April 2018 A/AC.105/1177
244. The view was expressed that the Subcommittee should undertake detailed discussions on the exploitation and utilization of space resources by private entities, specifically addressing the following concerns: whether the legal status of a celestial body was the same as the legal status of the resources on it; whether the exploitation and utilization of space resources by a private entity could be for the benefit of all humankind; whether a claim of ownership of space resources by a private entity violated the principle of non-appropriation in the Outer Space Treaty; and how an international mechanism for the coordination and sharing of space resources could be built.
If recent trends continue, this question could be revisited within the COPUOS with a resounding answer favorable to private property rights under the Outer Space Treaty.
With interest in private commercial ventures at an all time high, the right combination of action across national, intergovernmental and private actors, can solidify the favorable climate for off-planet resource utilization permanently, and place private industry in the driver’s seat.
