Wednesday, 19 February 2014

Aspects of Space Law - Notes from a presentation at the British Interplanetary Society

By Adam Manning LLB, LLM

Please note the following does not constitute legal advice. Any inaccuracies please let me know!

Legal ownership of space resources

Prior to Sputnik I and the start of the Space Age in 1957, the English legal position concerning the ownership of space had been remarkably clear.  The common law set forth the proposition of cuius est solum, eius est usque ad coelum et ad infernos. Lawyers are not supposed to use Latin in these modern times so I ought to provide a translation before my practising certificate is rescinded.  This handy phrase means that an owner of a parcel of land owns everything directly above and for that matter below it, to the Heavens themselves or Hell below.  This doctrine clearly has its origins in a pre-scientific age when the practical exploitation of the heavens, or rather space, was of no significance.

Exceptions to this rule soon became apparent though, such as the Crown’s rights to certain minerals below a plot of ground and with the advent of air travel by balloon the absurdities that might arise from applying the principle became evident.  When aircraft took to the skies, legal exceptions were allowed so that those flying over land could not be sued for trespass and whilst in theory the common law principle extended beyond Earth orbit, it is unlikely anyone will ever successfully claim damages against the owners of a satellite passing over their land using this ancient common law principle.

With the start of the Space Age, the need for a legal regime to manage and regulate this new arena of human endeavour became apparent.  The United Nations was the natural focus of efforts to consider these issues at an international level and following work in the early sixties, the Outer Space Treaty was drawn up in 1967.  More fully known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, this was and continues to be the major legislative enactment concerning the exploration and exploitation of space and the celestial bodies contained within it (with the exception of course of the Earth).

The Outer Space Treaty is of major importance, not least because as of 2012 it had been ratified by all the space faring nations.  Drawn up during one of the most dangerous phases of the Cold War, its major preoccupation is unsurprisingly the peaceful use of space.  States are prohibited from installing nuclear weapons or other weapons of mass destruction in orbit or on the Moon or other celestial bodies.  We have to be grateful that the Treaty has been successful in this aim to date.

Other provisions are more directly of interest to those studying the law relating to the exploration and exploitation of resources to be found in space (which I will take to include those on celestial bodies, to use the Treaty’s language).  According to the Treaty, nation states cannot claim ownership of extraterrestrial resources including land itself.  So, the USA could not for example claim an area around the Apollo moon landing sites as thereby falling within USA ownership.

It is thought this prohibition on ownership does not extend to private ownership so a company or even an individual could claim some form of de facto ownership presumably by an act of occupation.  Nation states are expected to regulate space activities by their citizens and one of the lesser known aspects of this obligation is that nation states are effectively responsible or liable for the activities in space of their citizens.  So, for example, if a British company carries out activities on the Moon this could lead to the U.K. government becoming liable for any acts of that enterprise.  In the U.K. these obligations are implemented under the Outer Space Act 1986 which provides for licensing of space activities by the U.K. government.

In comparison, the later Moon Treaty of 1979 has not been as successful in shaping the legal regime of outer space.  The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, to give the treaty it’s full name, went further than the previous one in seeking to regulate the use of space resources. 

One of the Moon Treaty’s core concepts is that space, the Moon, the planets and all other celestial bodies aside from the Earth are the common heritage of humanity.  This doctrine is mentioned in the Outer Space Treaty but is more fully developed here as its general tenor appears to prevent the ownership or exploitation of space resources either by nation states or private organizations or individuals. 

The Moon Treaty has yet to be ratified by any of the space faring nations and it is possible to see it as an attempt by non space faring nations, particularly from the developing world, to inhibit the richer space enabled countries from exploiting the resources to be found in outer space for their own gain.  Whilst enough countries have ratified it for it to have legal force, the lack of full ratification suggests it would in reality be of dubious enforceability.

The treaty looks forward to a time when the exploitation of, for example, lunar materials might be a practical reality and stipulates that before that takes place an international regime is implemented to regulate such activity.  This might involve some form of land registration for lunar territories presumably organised under the auspices of the United Nations.

Commentators have suggested that this approach is resistant to the use or exploitation of space resources particularly from a commercial view.  It’s likely that when the use of lunar or other celestial resources becomes a reality the Moon Treaty’s lack of enforceability will lead to it falling away. 

Law of the International Space Station

The legal regime concerning the International Space Station (ISS) is founded on the joint agreements between the contracting states responsible for it’s construction. 

The ISS consists of interlocking modules, each of which originates from one of the contracting states and the applicable law of each module is that of the state which constructed it.  In effect each section of the ISS is a continuation of the jurisdiction of the state that built it and this applies to both criminal and civil law, including intellectual property law.

It is difficult to see how this concept might be applied to a large O’Neillian style space station even if constructed by a collection of nation states as such a habitat would be a more integrated design than the modular nature of the ISS.  Nevertheless, it is not impossible to imagine a space station built with some degree of modularity and in the early stages a division of this sort might be feasible and indeed desirable to ensure it is built.