Establishing Legal Certainty for Modern Space Activities by Using Traditional Concepts of Civil Law by Maria Manoli

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Canadian Space Summit 2015/ Vancouver, 19-20 November / Session of Space Law & Space Commerce

Establishing Legal Certainty for Modern Space Activities by Using Traditional Concepts of Civil Law: the Triptych of Usus, Fructus, Abusus and the Issue of Private Ownership of Celestial Bodies

By Maria Manoli*

*Maria Manoli is a thesis LL.M. graduate of McGill University, Institute of Air & Space Law (IASL). Before her studies at McGill, she pursued a LL.M. in Public International Law and a LL.M. in Civil Law in the Law School of the National and Kapodistrian University of Athens, Greece, from where she also obtained her undergraduate law degree, all with upper-second class honors. She is a lawyer of the Athens Bar Association and she has worked for various governmental and non-governmental organizations. Currently, she is working as a research assistant in IASL.

Contents

Abstract

Commercialization of space activities has always been envisaged in science fiction scenarios; companies and individuals have been seen mining parts of outer space, i.e. mainly asteroids, and trading the products of their activities. Indeed, this fantasy is not a far cry from reality: Currently, major space affiliated companies have already started investing in the exploitation of the natural resources of celestial bodies. A series of reasons justifies such tendency: amelioration of the level of terrestrial live by securing alternative natural resources, enhancement of sustainable development and in situ exploitation of the material for space uses constitute some of them. However, commercial exploitation of space natural resources requires the extraction of parts of celestial bodies, while the provisions of the corpus juris spatialis argue for a non-appropriable nature of outer space per se and of its parts. This contradiction raises questions such as: “Does the extraction of minerals from celestial bodies fall within the ambit of the notion appropriation?” and if so, “Is such use of outer space prohibited on the grounds of the “non-appropriation” principle of space law?” And also: “What kind of interpretation of lex spatialis has to be undertaken in order to secure the legality of such activities without infringing traditional provisions and concepts of space law?”. This paper seeks to find a way to strike the balance between the demands that derive from the commercialization of outer space and the respect that has to be granted to age-surviving concepts and principles of space law such as the “non-appropriation” principle. An analytical interpretation of the civil law triptych of usus, fructus, abusus will serve as the axis of this paper in order to build an interpretation of space law modernized and in favor of the needs of the current space industry and market.

I. The Background: Modern Space Activities Requiring the Establishment of Property Rights in Outer Space

“It is difficult to say what is impossible, for the dream of yesterday is the hope of today and reality of tomorrow,”[1] states Robert Goddard.[2] Indeed, humankind has long been visualizing human activities to take place in outer space in order to facilitate terrestrial needs that seem inevitable, nonetheless become reality with the passage of time.[3] Traditional space activities that led to the development of space law, as it abides today, were perceived as unrealizable many years ago. While the launch of Sputnik I in 1957, the first artificial satellite to be sent from Earth to space,[4] had been planned for more than 30 years,[5] current terrestrial needs require human expansion to celestial bodies, such as asteroids, as a means to sustain humankind and its needs.

Indeed, the existence of valuable minerals in outer space has been confirmed since the Apollo Mission.[6] As suchlike minerals have been detected Helium-3, Hydrogen, Oxygen, Dioxide and Carbon, amongst others, all of which constitute scarce materials useful for terrestrial activities.[7] The extraction of such minerals is nowadays proved technologically feasible and cost-effective;[8] although space mineral extraction missions require big amounts of money, high technology and a big range of scientists and human dynamic, the return in investment proves to be profitable for States, private actors and the humankind.[9]

At the same time – and while private companies such as the Deep Space Industries, the Kepler Energy and Space Engineering, the Shackleton Energy and the Planetary Resources engage in the respective investments and are already involved in the preparation of relevant missions –[10] the depletion of the respective terrestrial natural resources[11] and the augmentation of Earth’s population[12] renders essential the need to take advantage of such a possibility. However, the provisions of space law that regulate the relevant matters appear inadequate to allow for the realization of such activities; so far, multiple discussions have taken place throughout the academic and political space (law) community without reaching any agreement as to the way in which such exploitation of outer space could be realized in a legal manner exploitation of outer space could be realized in a legal manner.[13] Although the concepts encompassed in international space law are characterized by a conservatism that roots in the era in which the five UN space law treaties were established,[14]the main objective that led to their creation consists in the amelioration of human life and the advancement of humankind. Indeed, the 1348 (XIII) UN Resolution,[15]the first UN Resolution referring to the way in which outer space was desired to be used and the one that constitutes the springboard for the establishment of the Outer Space Treaty, regards the exploration and exploitation of outer space as a means to benefit the “whole mankind”, concept that is being reiterated in the relevant UN Resolutions to follow and in every international space law treaty; its preamble stands as “desiring to promote energetically the fullest exploration and exploitation of outer space for the benefit of all mankind.”[16]

However, certain provisions of corpus juris spatialis are seemingly not allowing commercial exploitation of outer space through the extraction of space minerals,[17] posing thus a barrier to the realization of the above-described concept that encourages the use outer space “for the benefit of all mankind.” Hence, an interpretation of the provisions of space law that derives from traditional concepts and principles – to the extent that such interpretation is legally permitted – may constitute the gateway to such a kind of commercial exploitation of outer space without requiring a complete change of the conventional space law scenery.

a. The Needs of Private Space Actors in Light of the Demands of Traditional Space Law

Deep Space Industries, an asteroid mining company that aims to harvest, process and trade minerals from Near Earth Asteroids (NEAs) states that: “The harvest of space resources will be the biggest industrial transformation in human history.”[18] At first sight, such ambition can only be characterized as infeasible by taking into account the prohibitions of space law, i.e. article II of the Outer Space Treaty that attributes to outer space a non-appropriable nature and the general status of outer space.[19] The asteroid mining plans of the company consist of four stages: the phase of “prospecting”, the phase of “harvesting”, the phase of “processing” and the phase of “manufacturing”.[20] At the first stage, the company aims to send micro-robotic sensors to NEAs in order to acquire information as to the kind and quality of the resources that they entail, as well as about their extractability. Once this information is acquired and processed by the company, it will be able to harvest the materials that proved to be extractable at the previous stage. Such extraction will take place by using a customized robotic spacecraft. [21]The stage of extraction will be followed by the processing of the extracted materials, that is, the preparation for the next stage; in the final stage – the “manufacturing” stage – the material that has been detected as valuable will be manufactured and transformed into useful elaborated resources to be used either for in situ space uses or for terrestrial needs.[22]

One more space mining company is the Kepler Energy and Space Engineering LL.C., which intends to mine asteroids by using a more simplified technique.[23] The company aims to use already existing technologies of anchoring space objects on comets and asteroids.[24] The launched and anchored objects will be composed of systems that dig into the celestial bodies and harvest the desired material.[25] However, the collected material will neither be sent to the Earth, nor be elaborated for in situ uses;[26] it will be sent to the Low Earth Orbit (LEO) and exploited from there either for terrestrial uses, or for activities taking place in outer space (indirect elaboration).[27]

In the same vein stand the plans of the Shackleton Energy Company, which prospers to reach the lunar poles and extract water from the polar regolith.[28] The company aims to establish permanent installations on the Moon and permanently send crew there. The stages of the planned missions will consist in the launching of the necessary space objects, vehicles and crew from Earth for the extraction of iced water, the process of the water to usable forms and its placement to LEO;[29] from LEO the water will either be resent to the Moon in order to fuel the next missions, or it will be sold to interested “customers.”[30]

Last but not least, the Planetary Resources Company aims to extract water from asteroids by using its own developed technology.[31] The water will solely be used for in situ uses, i.e., for refueling space missions and for supplying space stations with potable water. The harvested water will be stored in launched warehouses until circumstances require its use.[32]

As it is apparent, all companies seek to extract material from celestial bodies and transform it to usable means for either terrestrial or in situ space uses. All the mechanisms described above amount to one common denominator: the companies do not only want to establish activities on the surface and subsurface of celestial bodies, but they also wish to remove and elaborate parts of them with the intention to trade them.[33] Consequently, they seek a legal framework that permits such kind of exploitation and grants them the right to proceed to the removal of the material and its further transformation into usable resources.[34]Thus, principles already existing in space law, such as the prohibition to establish property rights on parts of outer space do not facilitate such purposes; especially, by taking into account the majority of the scholarship that interprets such prohibition as binding not only upon States, but also upon private entities.[35]

b. The Legal Status of Outer Space as a Blockage to the Commercialization of Space Activities

International space law entails provisions, such as the “non-appropriation” and the “non-sovereignty” principles, which constitute a blockage to the above activities intended by private space affiliated companies.[36]

Article II of the Outer Space Treaty states 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 occupation, or by any other means.” This article builds the main concept as to the nature of outer space and leads to its characterization by a major part of the scholarship as res communis omnium.[37] This characterization finds its origins in Roman law, where it was used to characterize areas that were free from occupation and could equally be used by everyone.[38] The term was for the first time used to characterize the high seas in the “Fisheries jurisdiction Case”[39] and it was transformed into law in article 87 of the United Nations Convention on the Law of the Sea in 1982.[40] Specifically, Judge Castro stated in the above mentioned case that “the high seas is something that lends itself to ownership; its use is common to everybody […]” and that “there is no need to divide it up.”[41] In a similar manner, article 87 of the UNCLOS states that “the high seas are open to all States, whether coastal or land-locked.”[42]

On the basis of the above and by taking into consideration the provisions of article I of the Outer Space Treaty, according to which

“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,”

outer space can be attributed a res communis omnium characterization. Such notion does not leave enough space to private entities to expand to space activities that require appropriation on parts of outer space.

However, this is a general characterization of outer space per se. Like the law of the sea attributes a different notion to parts of the high seas, such as the deep seabed, which can be exploited by all States,[43] space law should include provisions to specifically regulate the issue of space areas that can serve as resources of valuable materials. What makes the resources of parts of outer space differ from outer space per se is their peculiar nature as removable resources; they even have been characterized as “fruits of outer space.”[44] Specific reference to the natural resources of outer space is given only in the Moon Agreement that refers to them as “common heritage of mankind.”[45]

According to the Vienna Convention on the Law of the Treaties,[46] agreements subsequent to the document under interpretation can be taken into account in order to light the meaning of the text under interpretation.[47] The Moon Agreement is such an agreement with regards to the Outer Space Treaty.[48] Thus, although it is an international instrument that does not enjoy broad acceptance by the international space law community,[49] it can be used in order to provide a characterization to the nature of the space natural resources given the silence of the Outer Space Treaty on the topic. As a result, the resources of outer space can be characterized as “common heritage of mankind” in a way similar to the resources of the high seas[50] and thus be deemed exploitable and escape the general res communis status of outer space per se. Such approach, however, is neither adequate to justify property rights over the resources, nor to allow private entities to appropriate and trade the extracted material from celestial bodies. To this purpose, the traditional elements that constitute the notion of “property” can be used to support not only the exploitable, but also the appropriable nature of space natural resources and, in such a manner, facilitate relevant modern commercial space activities.

II. The Notion of Property in the Traditional Civil Law Context

The concept of property has always been considered as creating links between persons and objects and as establishing legal relationships between them. Within this rationale fall notions such as “ownership”, “possession” and “property” that,[51] from time to time, have been used to address different aspects of the relationship between persons and objects. The concept of property finds its origins in Roman law as well; Roman law used the terms dominium and proprietas in order to describe the powers that emerge from such relationships and the impact they have on the broader community.[52] The term dominium in Roman law, and later in the domain of property law in civil law jurisdictions, was used to refer to the legal powers that derive from the right of persons to acquire objects and dominate on them; in other words, it referred to the exclusive right to use the objects in the way they wish by excluding, at the same time, others from their use.[53] As a consequence of this connection between persons and objects comes the second term used to describe an aspect of the concept of “property”: the proprietas. Nowadays, most of civil law jurisdictions recognize the term proprietas as identical to the concept of property.[54] The status of property or proprietas over an object can be considered as a consequence of the dominium over it. However, this term has broader legal implications than the term dominium, since it refers to property rights recognized by law and grant their subjects the power to exclude others from the use of the same object.[55] Thus, property is a consequence of the domination over an object, situation that renders the term dominium a mere fact rather than a legal dynamic. In a similar way, the concept of property is recognized in a few common law jurisdictions as well. For example, the law of the United States recognizes powers deriving from property rights as excluding others from using land already existing under titles of property.[56] The same provisions exist in English law as well.[57]

International law also attributes to the subjects of property rights the exclusivity of such rights. This becomes obvious in the 1st Protocol of the European Convention of Human Rights,[58] which has also been considered as emerging customary law[59] and according to which everyone has the right to enjoy his possessions in a peaceful way and thus not to be disturbed by others in the exercise of such right.[60]

Although the analysis of the concept of property seems irrelevant to space law and to the plans of private entities to extract and use parts of outer space, it is not. The right of property of objects, as entailing the power of “exclusivity”, has traditionally been accepted to be composed of three elements: the usus, the fructus and the abusus, [61]all deriving from Roman law[62]and all being aspects of the exercise of property rights.[63]All the three elements must be realizable in order to establish property over an object.[64]

The Outer Space Treaty explicitly prohibits the appropriation of outer space per se and of the celestial bodies.[65] Almost the same provisions are reiterated in the Moon Agreement, according to which “the moon [and the other celestial bodies] is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means;”[66] and it continues: “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 nongovernmental organization, national organization or non-governmental entity or of any natural person.”[67]

As derives from the above Outer Space Treaty provisions, such prohibition does not explicitly cover the natural resources of the celestial bodies.[68] However, article 11 of the Moon Agreement extends this prohibition not only to the surface, but also to the subsurface and the natural resources of the celestial bodies.[69] As part of the subsurface of the celestial bodies can also be considered their natural resources, since most of them can be detected there. Though, natural resources can also be found attached on the surface of the celestial bodies; an example is the iced water that has been detected on the poles of some of the celestial bodies.[70] A question follows: “In which way can the triptych of usus, fructus, abusus, be used as a means of interpretation of space law in order to prove that the concept of property can be applied to the natural resources of celestial bodies by simultaneously respecting the special legal status that they enjoy and the limitations of space law?”

a.“Usus, Fructus, Abusus”: A Springboard to the Establishment of Property on Parts of Outer Space

As already discussed, the notion of property consists of the three elements of usus, fructus and abusus. Historically, the first term refers to the right of the owner to “use” the object of his ownership.[71] With the passage of time, the usus started being identical to the whole concept of property and the two terms started to be used alternatively.[72] In the triangle of usus, fructus, abusus, however, the term has a distinctive meaning that is helpful to the interpretation of the status of property rights that governs celestial bodies. The usus is followed by the term fructus, which comes as a natural consequence of the usus. Fructus is the right of the owner to enjoy the benefits of the object of his ownership. [73] Within this notion are included all the direct benefits as well as all the indirect benefits that could possibly derive from the use of the object in question. For instance, a direct benefit can be the use of the object as such, while an indirect benefit can be the profits emerging from further use of the object, e.g., from trading the object.

The third element that completes the notion of property is the abusus. This term refers to the right of the owner to “abuse” the object of the ownership. However, the literal translation of the Latin term by using the word “abuse” is inaccurate in concept and meaning. By abusus the right of the owner to dispose the object on its own will is meant.[74] This third element of the triangle comes to fulfil the first element, i.e., usus, by granting the owner the right to “use” the object in whichever way the owner wishes to, as long as he does not disregard the rights of the others[75] – as happens with any kind of rights and in any kind of legal field. Thus, on the basis of this facet of the right of property, the owner can dispose the object on its own will (use, destroy and dispose it) being, however, always limited by the obligation not to interfere with the rights of others.

In order to understand the significance of the above concepts for modern and commercial space activities, the examination of each one of them has to take place in light of the intended space mining activities, which constitute the main activities requiring the establishment of property over parts of outer space, i.e., over the natural resources of celestial bodies. If all the three aspects of the notion of property can be applied in the case of mineral exploitation of celestial bodies, then property can be established on the extracted material by the extracting entities. Otherwise, such interpretation on the basis of traditional property rights concepts is unavailing.

Visualizing the mining activities intended by space mining companies as presented above, the actual intended operations can be outlined: According to the presented plans, the companies aim not only to reach the asteroids and their natural resources, but also to extract and elaborate them further in order to transform them into usable resources and commercialize them.[76] This activity can be summarized in three different stages: the interference with the surface and subsurface of the celestial bodies (i), the extraction of the material and the subsequent alteration of the celestial body (ii) and, the elaboration of the extracted material into further forms of resources (iii) – each one of which will be examined under the three elements of property, the usus, the fructus and the abusus.

(i) First stage of interference with the surface and subsurface of the celestial body: At this stage the extracting entity solely reaches the surface of the celestial body and starts altering its subsurface through technical procedures that lead to the final extraction of the aimed material. From the three elements of the notion of property neither seems to be relevant in this case; the extracting entity neither uses, nor enjoys the products, or is able to dispose the material on its own will, since it does not have access to the material yet. This stage can be characterized as a preparatory stage that does not require the existence of property rights in order to be profitably accomplished. Thus, since neither of the sub-notions that constitute the notion of property can be applied here, the traditional concept of property cannot be regarded as applicable at this stage of the operation.

(ii) Second stage of extraction of the material from the celestial body: This is the most important – the key-stage – of the procedure that distinguishes the initial status of the celestial body from the status that it is going to have after the extraction of the material; this new status will initiate a new phase in the whole mining process; the moment of the extraction constitutes a transitional phase. Since the previous stage does not require the establishment of property on parts of the celestial body, but the next one (the commercial exploitation of the extracted materials) require so, this middle stage must be the one justifying the establishment of property on the extractable parts. Indeed, all the three traditional elements of the notion of property apply here: usus, since the entity starts using the material by extracting it from the rest of the celestial body (in other words, the extraction is the first way in which the extracting entity uses the material); fructus, since the entity extracts the material in order to elaborate it further and enjoy the direct and indirect benefits that derive from its “use”, i.e., direct uses of the material by the same entity, or economic benefits in case of commercial transactions; last, the element of abusus is necessary to legally exist here, since the commercial exploitation of the material requires the subject of the activity to be able to dispose it on its own will.

(iii) Third stage of exploitation of the extracted material: Taking as granted that the second stage of the extraction requires the establishment of property on the extracted minerals, the commercial exploitation of the resources at this stages does not face barriers.

As it is understandable, neither property rights are required during the stage of reaching the celestial body and preparing the extraction of the material, nor the three elements of usus, fructus, abusus can lead to such conclusion. However, the second stage requires the establishment of all three of them and, in general, the establishment of property, should companies wish to proceed to the third and last stage of elaboration and commercialization of the materials, that comes as a natural consequence of the previous stages.

b. Traditional Norms Serving Modern Needs: The Point of Convergence

The question that arises from these thoughts consists in asking whether the terms usus, fructus, abusus that originate from traditional Roman civil law concepts can be used to interpret international space law provisions in a way so as to facilitate the commercial exploitation of outer space natural resources as planned by the currently investing space mining companies. Indeed, article 31 para. 1 of the VCLT,[77] which is the main international legal instrument used for the interpretation of international law that emerges from treaties,[78] states as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given in terms of the treaty in their context and in light of its object and purpose.”[79]

Additionally, the VCLT can be used to interpret the provisions of the Outer Space Treaty regardless of the fact that it was drafted in 1969, i.e., two years after the establishment of the Outer Space Treaty (1967), because the principles it entails reflect customary law; they are thus binding as custom in the interpretation of international agreements.[80]

As discussed earlier, the Outer Space Treaty neither specifically includes natural resources in the general non-sovereign status of outer space, nor does it specifically prohibit the appropriation of natural resources.[81] By accepting the opinion that attributes to the natural resources a status different from the outer space per se, i.e., a status that accords to the one given to the natural resources of the deep seabed and that regards them as common heritage of the mankind,[82] the triptych of usus, fructus, abusus can be applied in order to interpret the extraction of the natural resources as permissible on the grounds of the Outer Space Treaty.

Specifically, article I of the Outer Space Treaty provides that the exploration and use of outer space shall be carried out “for the benefit and in the interests of all States”,[83] while the 1348 UN Resolution regards the “use” and “exploration” of outer space as being carried out for the betterment of all humankind.[84] The exploitation of natural resources falls within the ambit of this purpose since it meets multiple earthly needs, as discussed in the first part of this paper. Consequently, according to the Outer Space Treaty, outer space activities cannot amount to the establishment of property on parts of outer space, but they have to be undertaken for the benefit of humankind.[85]

By interpreting the exploitation of the natural resources of outer space as falling within the ambit of the “use” of outer space as laid down in article 1 of the Outer Space treaty, the following thoughts come to mind: since the “use” (/exploitation) of outer space, is encouraged in the Outer Space Treaty, and since the traditional concept of the notion property entails as main element the “use” of an object, such usus can be considered as the first step to establish property on the extractable parts of the celestial bodies. The fructus and the abusus of these parts come as necessary consequences of the “use” of these parts of the outer space; in such a way, the natural resources of the celestial bodies can be regarded as consecutively appropriable due to their “use”, but not as appropriable ex tunc.

However, such interpretation does not escape limitations. The rest of the provisions of the Outer Space Treaty have to be respected. First of all, article I of the Outer Space Treaty provides for “the use and exploration of outer space by States irrespective of their degree of economic or scientific development” .[86] Taking into account that the most technologically advanced States (developed States) would be able to reach the natural resources of outer space and benefit from their exploitation before the less developed States manage to achieve the same purpose, a “first in time, first in right” policy would be de facto established; hence, infringement of the provisions of the Outer Space Treaty would take place with regards to the indiscriminative use of outer space. .[87] Consequently, entities that possess the technological capabilities to mine the resources of outer space are burdened with the obligation to ensure that enough amounts of resources remain available to be exploited by the rest of the states.

Additionally, if accepting that the natural resources of outer space can be exploited and owned by the extracting entities, the trap of falling within the prohibition of the “non-appropriation” principle is lurking, since the unlimited extraction of celestial bodies can cause the celestial body to vanish; this would mean that the extracting entity would exercise the usus, fructus, abusus not only over the natural resources of the celestial body, but also over the celestial body in toto. In other words, the extracting entity would come to establish property on the celestial body, which is forbidden in article II of the Outer Space Treaty[88] and it will thus fall within the prohibition that emerges from the “non-appropriation” principle.

To the same conceptual result leads the analysis of article 11 para. 3 of the Moon Agreement, according to which:

“Neither the surface not 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.[…]”

Although the prohibition of the “non-appropriation” principle is explicitly extended to the natural resources in the above article, the “use” of the natural resources is also explicitly allowed in the same article, para. 5 of the Moon Agreement, which reads:

“States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. […].”

Provided that the exploitation of the natural resources of the celestial bodies is allowed – i.e., the usus of the natural resources –, the fructus and abusus of them comes as a consequence of the usus. In such a way, the ownership of the natural resources of the celestial bodies appears legally feasible given that the limitations mentioned above (as to the rational use and the prevention of total vanishment of the celestial body) are respected. Similarly, in the case of the Moon Agreement, the obligation of the rational use emerges from article 11 para. 7 (b), (d) which states:

“The main purposes of the international regime to be established shall include:

[…](b) The rational management of these resources,

[…](d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.”

III. Conclusions

The example of the triptych of usus, fructus, abusus for interpreting the “non-appropriation” principle as not binding upon the use of and ownership over the natural resources of the celestial bodies is an approach that satisfies the interests of modern commercial space actors that seek to exploit the natural resources of outer space by respecting at the same time the concepts, principles and prohibitions of space law. However, it should be applied with sparseness and not for the purposes of establishing an a priori possibility to own parts of the outer space.

Such interpretation can only justify the acquisition of natural resources by the extracting entities as a result of their “use”, as the latter is allowed in article I of the Outer Space Treaty[89] and in article 11 para. 7 of the Moon Agreement,[90] and to the extent that it does not interfere with sovereignty issues by alienating the status of the celestial bodies. Thus, property over the natural resources can be tolerated on the basis of interpretative norms deriving from traditional civil (property) law concepts and not by infringing obligations emerging from international law (space treaties).

In light of the above analysis and conclusions, the example of the U.S. approach with regards to the exploitation of natural resources of celestial bodies and its legal implications can be taken into consideration:

On 10 July 2014 the American Space technology for Exploring Resource Opportunity in Deep Space Act[91] was proposed to the Congress of the United States. The Act introduces the legality of property of celestial bodies’ natural resources for the extracting private entities and prevents space actors of other States from interfering with such activities.[92]Similar provisions were reiterated in the Bill to Promote the Development of a United States Commercial Space Resource Exploration and Utilization Industry and to Increase the Exploration and Utilization of Resources in Outer Space[93]that was introduced to the House of Representatives in June 2015.[94]The same rights are intended to be granted through the H.R. 2262 U.S. Commercial Space launch Competitiveness Act[95]that has not been incorporated yet as national law of the U.S., but it has passed at the Senate floor:[96]chairman Thune specifically states that “[…] the Senate passed a bill with far-reaching implications for the future of space exploration and the U.S. space industry,"[97]while Chris Lewicki, the President and Chief Engineer of Planetary Resources, Inc. states that:

“We are proud to have the support of Congress. Throughout history, governments have spurred growth in new frontiers by instituting sensible legislation. Long ago, The Homestead Act of 1862 advocated for the search for gold and timber, and today, H.R. 2262 fuels a new economy that will open many avenues for the continual growth and prosperity of humanity. This off-planet economy will forever change our lives for the better here on Earth.”[98]

The tendency of the U.S. is to allow the commercial exploitation of the natural resources of outer space on the basis of the establishment of property over them via a priori acceptance that such rights are legally permissible. In other words, the U.S. legislation tends to recognize that private entities have the right to own the extracted mineral resources in a normative way that roots in legislation. Such perception, however, is contrary to the restrictions provided for in article II of the Outer Space Treaty, which abides the U.S. that is a State Party to the treaty. The interpretation on the basis of the concepts of usus, fructus, abusus could solve such a problem without requiring the establishment of national rules that apparently contradict the spirit of the Outer Space Treaty.

In conclusion, the aim of this paper was not to support the feasibility of the a deduced establishment of property over parts of outer space, such as the outer space natural resources, since this would infringe the “non-appropriation” principle. On the contrary, what is presented is the necessity to accept that removable space natural resources can be owned as a consequence of their “use”, the latter being encouraged in article I of the Outer Space Treaty, given that such “use” takes place within the limitations as to the extent of the exploitation and as to the interests of other governmental and private space actors; such perception finds justification in the traditional concept of property as consisting of its three facets, the usus, the fructus and the abusus.

Footnotes

  1. ^  NASA, online: <http://www.nasa.gov/centers/goddard/about/history/dr_goddard.html>.
  2. ^  Dr. Robert h. Goddard is an American rocketry pioneer; see, op.cit., fn. 1.
  3. ^  See, for example, Arthur Clarke, The Collected Stories of Arthur Clarke, Volume I: History Lesson (New York: Rosetta Books LLC, 2000), at foreword.
  4. ^  Francis Lyall & Paul B. Larsen, Space Law; A Treatise (USA, England: Ashgate, 2009), at 1.
  5. ^  Roger D. Launius, “Sputnik and the origins of the Space Age”, online: NASA <http://history.nasa.gov/sputnik/sputorig.html>.
  6. ^  Harrison Schmitt states: “One of the most significant contributions of the Apollo Missions was confirming the presence of Helium-3 on the Moon”; see, “Helium-3: One of the most Significant Contributions of the Apollo Missions” (12 October 2012), online: NASA <http://www.nasa.gov/centers/wstf/news/2012/helium3.html#.VYxb0flVhBc>.
  7. ^  Canadian Space Agency [hereafter “CSA”], “Regulatory and Economic Aspects of the Exploitation of Outer Space Resources”, Study, (St. Hubert, Quebec, Canada, March 2013), at 5; Francis Lyall, “On the Moon” (1998) 26 J. Space L. 129, at 192-130.
  8. ^  Mark J. Sonter, The Technical and Economic Feasibility of Mining the Near Earth Asteroids (MSc Thesis, University of Wollongong, 1997), at 100-107.
  9. ^  “Study: Asteroids provide Sustainable Resource” (13 June 2013), online: NASA <https://www.nasa.gov/mission_pages/asteroids/news/asteroidmining.html#.VZLK20bv40w>.
  10. ^  Deep Space Industries, online <http://deepspaceindustries.com>; Kepler Energy and Space Engineering, online: <http://www.kesellc.com>; Shackleton Energy, online: <http://www.shackletonenergy.com>; Planetary Resources, online: <http://www.planetaryresources.com>.
  11. ^  “The Overall Environmental Impact of Europe’s Resource Use Continues to Grow” (16 October 2014), online: EEA <http://www.eea.europa.eu/soer/synthesis/synthesis/chapter4.xhtml>.
  12. ^  “Current Population is Three Times the Sustainable Level”, online: World Population Balance <http://www.worldpopulationbalance.org/3_times_sustainable>.
  13. ^  Sarah Fecht, “Is Space Mining Legal?”, online: Popular Science <http://www.popsci.com/it-could-soon-be-legal-to-mine-asteroids>.
  14. ^  Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed on 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) [hereafter “Outer Space Treaty”]; Agreement the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space, signed on 22 April 1968, 19 UST 7570, 672 UNTS 119 (entered into force on 3 December 1968); Convention on International Liability for Damage Caused by Space Objects, signed on 29 March 1972, 24 UST 2389, 961 UNTS 187, TIAS No. 6347, 6 I.L.M. 386 (entered into force on 1 September 1972); Convention on Registration of Objects Launched into Outer Space, signed on 6 June 1975, 28 U.S.T. 695, 1023 UNTS 15, TIAS No. 8480, 14 ILM 43 (entered into force on 15 September 1976); Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, G.A. Res. 34/68, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. N34/664 (1979) (entered into force on 11 July 1984).
  15. ^  Question on the peaceful use of outer space, GA Res 1348, UNGAOR, 13th Sess, UN Doc A/Res/1348 (1958).
  16. ^  Op. cit, fn. 15.
  17. ^  Article II of the Outer Space Treaty and article 11 para. 4 of the Moon Agreement.
  18. ^  Deep Space Industries, “Mining the Sky”, online: <http://deepspaceindustries.com/space-resources/>.
  19. ^  “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.”
  20. ^  Op. cit., fn. 19.
  21. ^  “Prospecting”, online: Deep Space Industries <http://deepspaceindustries.com/prospecting/>.
  22. ^  “Manufacturing”, online: <http://deepspaceindustries.com/manufacturing/>.
  23. ^  Doc: “Asteroid Mining – Why and How”, online: Kesellc <http://kesellc.com/>.
  24. ^  Op. cit., fn. 23.
  25. ^  Id..
  26. ^  Id..
  27. ^  Id..
  28. ^  “Why make Fuel from Water on the Moon”, online: Shackleton Energy <http://www.shackletonenergy.com/overview#goingbacktothemoon>.
  29. ^  Id..
  30. ^  Id..
  31. ^  Graph, online: <http://www.planetaryresources.com/technology/#technology-overview>.
  32. ^  Id..
  33. ^  Mike Wall, “Asteroid-Mining Company to Deploy 1st Satellite This Summer”, online: <http://www.space.com/29321-asteroid-mining-planetary-resources-satellite.html>.
  34. ^  Lauren Shaw, “Asteroids, The New Western Frontier: Applying Principles of the General Mining Law of 1872 to Incentivize Asteroid Mining” (2013) 78 J. Air L. & Com. 121 at 127.
  35. ^  See, for example, Stephen Gorove, “Interpreting Article II of the Outer Space Treaty” (1969) 37 Fordham Law Review 349, at 351-352; Alan Wasser & Douglas Jobes, “Space Settlements, property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate it Needs to Survive?” (2008) 73 J. Air L. & Com. 37, at 47.
  36. ^  Article II of the Outer Space Treaty.
  37. ^  For instance, Gyula Gal, Space Law (1969), at 189; Manfred Lachs, Law of Outer Space (the Netherlands: Springer, 1972), at 30.
  38. ^  Ian Brownlie, Principles of Public International Law (New York: Oxford University Press, 2008), at 175.
  39. ^  Fisheries Jurisdiction Case (Great Britain & North Island v. Iceland) [1974] .
  40. ^  UN Convention on the Law of the Sea, signed on 10 December 1982, 1833 UNTS 3, 21 ILM 1261 (1982) (entered into force on 16 November 1994) [hereafter “UNCLOS”].
  41. ^  Fisheries Jurisdiction Case (Great Britain & North Island v. Iceland) [1974], Separate opinion of Judge Castro, at 81.
  42. ^  Article 87 of the UNCLOS: “1. The high seas are open to all States, whether coastal or land-locked. […].”
  43. ^  See Article 137 of the UNCLOS which states: “1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, […].No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. […]”, in comparison with Article 11, para. 8 of the Moon Agreement that requires equal sharing of the natural resources exploited in outer space: “An equitable sharing by all States Parties in the benefits derived from those resources […].”
  44. ^  Ezra J. Reinstein, “Owning Outer Space” (1999) 20 Northwestern J. of Int’l L. & Bus. 59, at 73.
  45. ^  Article 11, para. 1: “The Moon and its natural resources are the common heritage of mankind.”
  46. ^  Vienna Convention on the Law of Treaties, published on 23 May 1969, UN Doc. A/Conf.39/27 (1969) (entered into force on 27 January 1980) (hereafter “VCLT”).
  47. ^  Article 31, para. 1, 2 VCLT: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection.”
  48. ^  See the preamble of the Outer Space Treaty: “[…] Recalling the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies […].”
  49. ^  Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and other Celestial Bodies; a Proposal for a Legal regime (The Netherlands: Martinus Nijhoff Publishers, 2009), at 225.
  50. ^  United Nations Conference on the Law of the Sea, Volume IV, UN Doc A/CONF.13/C.2/SR.11-15 (1958), at 27.
  51. ^  Frank Snare, “The Concept of Property” (1972) 9 American Philosophical Quarterly 200, at 203.
  52. ^  William L. Burdick, The Principles of Roman Law and their Relation to Modern Law (Clark, New Jersey: The Lawbook Exchange, Ltd, 2004), at 325.
  53. ^  John Bouvier, Francis Rawle, A Law Dictionary; Adapted to the Constitution and Laws of the United States of America and of the Liberal States of the American Union: with references to the civil and other systems of foreign law, Vol II (Philadelphia: J. B. Lippincott Company, 1891), at 478.
  54. ^  John G. Sprankling, The International Law of Property (United Kingdom: Oxford University Press, 2014), at 296.
  55. ^  Nicholas J. Campbell, “Principles of Mineral Ownership in the Civil Law and Common Law Systems” (1956-1957) 31 Tul. L. Rev. 303, at 304.
  56. ^  Op. cit., fn. 53.
  57. ^  See, for example, U.K. Land Registration Act of 2002, Part 2, Chapter 1, Section 11.
  58. ^  1st Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris, on 20 March 1952, ETS 9.
  59. ^  UN Human Rights Office of the Commissioner, Europe, Regional Office, The European Union and International Human Rights Law (United Nations, 2012), at 23-24, online: OHCHR <http://www.europe.ohchr.org/Documents/Publications/EU_and_International_Law.pdf>.
  60. ^  Article 1 of the 1st Protocol of the ECHR: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”
  61. ^  D. M. McRae, A. L. C. de Mestral (Eds.), The Canadian Yearbook of International Law, Vol XLVII (Vancouver: University of British Columbia Press, 2010), at 440.
  62. ^  A. N. Yiannopoulos, “Usufruct: General principles Louisiana and Comparative Law” (1966-1967) 27 La. L. Rev. 369, at 369.
  63. ^  Leon Trakman, Nicola Ranieri, Regionalism in International Investment Law (New York: Oxford University Press, 2013), at 443.
  64. ^  Id..
  65. ^  Article II of the Outer Space Treaty.
  66. ^  Article 11 of the Moon Agreement.
  67. ^  Article 11 para. 3 of the Moon Agreement.
  68. ^  Id..
  69. ^  Id..
  70. ^  Activities being carried out or to be carried out on the Moon and other celestial bodies, international and national rules governing those activities and information received from States parties to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies about the benefits of adherence to that Agreement, GA COPUOS 2012, 51st Sess, UN Doc A/AC.105/C.2/L.285 (2012).
  71. ^  Bin Cheng, “The Commercial Development of Space: the Need for New Treaties” 19 (1991) J. Space L. 17, at 17,
  72. ^  Id..
  73. ^  Raymond Russell, Sharing Ownership in the Workplace (New York: State University of New York Press, Albany, 1985), at 2.
  74. ^  Id..
  75. ^  Op. cit., fn. 71.
  76. ^  Op. cit., fn.33.
  77. ^  Article 31, para. 1, VCLT: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
  78. ^  See Part 1, Article 1 of VCLT “Scope of the Present Convention”: “The present Convention applies to treaties between States”. faith in accordance with the ordinary meaning to be given in terms of the treaty in their context and in light of its object and purpose.”faith in accordance with the ordinary meaning to be given in terms of the treaty in their context and in light of its object and purpose.”faith in accordance with the ordinary meaning to be given in terms of the treaty in their context and in light of its object and purpose.”
  79. ^  Op. cit., fn. 77.
  80. ^  Mark. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of the Treaties (Leiden, Boston: Martinus Nijhoff Publishers, 2009) at 1.
  81. ^  Article II of the Outer Space Treaty: “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.”
  82. ^  See, Section 4 of the UNCLOS.
  83. ^  Article I, para. 1 of the Outer Space Treaty: “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.”
  84. ^  Op cit., fn. 15.
  85. ^  Article II and article I respectively.
  86. ^  Article I: “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. Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.”
  87. ^  Id..
  88. ^  The total exploitation of the celestial body turns to be abusive since it leads to the elimination of the celestial body by the extracting entity, which means that the extracting entity excludes all the other entities from using/exploiting the same celestial body.
  89. ^  Op. cit., fn. 86.
  90. ^  Article 11, para. 7 of the Moon Agreement: “The main purposes of the international regime to be established shall include: (a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.”
  91. ^  American Space Technology for Exploring Resource Opportunities In Deep Space Act, 13th Congress, House of Representatives (10 July 2014) [known as the “ASTEROIDS Act”].
  92. ^  Para. 50301 of the Act.
  93. ^  A Bill to promote the development of a United States commercial space resource exploration and utilization industry and to increase the exploration and utilization of resources in outer space, 114th Congress, House of representatives (15 June 2015) [known as “Space Resource Exploration and Utilization Act of 2015”].
  94. ^  Id..
  95. ^  An Act to facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes, 114th Congress, 1st Sess, Senate (10 November 2015).
  96. ^  Id..
  97. ^  “Joint Commerce Committee Statement on Senate Passage of Bill to Boost Competitiveness of U.S. Space Industry” (10 November 2015), online: senate.gov <http://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=DB5B1CC3-6AD3-4430-BD11-710211FD30F7>.
  98. ^  “Planetary Resources Applauds U.S. Congress in Recognizing Asteroid Resource Property Rights” (10 November 2015), online: Planetary Resources <http://www.planetaryresources.com/2015/11/planetary-resources-applauds-u-s-congress-in-recognizing-asteroid-resource-property-rights/>.
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