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Space Lawyer Ian Perry: Current Lack of Real Property Rights on Celestial Bodies Will Run Into Problems

In the previous part of the space law interview, we talked with Mr. Perry mostly about United States laws on space, and only scratched the surface of the international dimension of this legislative area. This time, we took a closer look at the international agreements on space, and, most importantly, at what they could be like in the future.

Even though national laws may be progressive all they want, it’s the international treaties and agreements that really matter when it comes to cooperation (or rivalry) between countries. But how do those treaties influence private companies, considering most of them were concluded back in the days when no business could afford to work outside of our planet, and there were only two powers in the world that de-facto decided what could and couldn’t be done in space?

lawless.tech: There is the well-known Outer Space Treaty that regulates activities out there in space. However, some members of the U.S. government and the space industry think it’s a little bit outdated. Do we need new international treaties, considering such a rapid growth of the space industry worldwide?

Ian Perry: In my opinion, the Outer Space Treaty was less than ideal at the time it was drafted, however I am not sure how much political will there is to deliberate over and then advocate for an improvement. The Outer Space Treaty does not ban ownership of extracted resources, however its ban on appropriation of territory on celestial bodies does remove one incentive to do the initial exploration and development there. It’s good that the U.S. (or the Soviet Union) was not able to claim the whole moon based on getting there first, but smaller claims might have helped compensate explorers for the initial investment involved in being the first one to get to (and build a base on) a specific location. This brings us to a problem with some U.S. attacks on “commons” language—it gets in the way of a clear discussion of what sort of regime we want to have in space. Scott Pace, who I think I agree with in many contexts and who seems to be doing good work, has said “outer space is not a ‘global commons,’ not the ‘common heritage of mankind,’ not ‘res communis,’ nor is it a public good.” (IISL Galloway Space Law Symposium)

However, at present space has a similar status to the High Seas, if we want to differentiate celestial bodies and say that we should allow removal of land from the commons, such a categorical statement is not helpful. It is certainly not the best way to defend a current right of ownership over extracted resources. In fact, it obfuscates the historical right of removing resources from common areas (and aligns ‘common heritage’ with terms that lack its association with the Moon Agreement and United Nations Convention on the Law of the Sea). Presumably almost everyone in this discussion wants much of “open space” to remain free for all to pass through—in other words, we generally want “open space” to remain a commons. If we want to change the legal situation on celestial bodies (or with regard to specific locations or orbits elsewhere in space), it is not helpful to say that they, present tense, are not a commons.

lawless.tech: There is a concept of the “common heritage of mankind” that cannot be acquired by governments, and legal and physical persons, which mostly relates to the resources coming from the seabed. Is this concept applicable to space objects? Should it be repealed, or it’s crucial for further space exploration?

Ian Perry: Common heritage of mankind was intended by some to put constraints on resource activities in the deep seabed and on celestial bodies. The term common heritage of mankind appears in the United Nations Convention on the Law of the Sea (UNCLOS) and in the Moon Agreement (the term does not appear in the Outer Space Treaty, which uses the term “province of all mankind”, most countries are parties to the Outer Space Treaty and very few are parties to the Moon Agreement). I am not sure that the term “common heritage” by itself entails any unique concrete legal obligations.  In relation to mining the deep seabed, the legal doctrine has arguably been interpreted in a narrow sense by a 1994 agreement about how to implement part of UNCLOS.

There are two interpretations of common heritage and res communis/common area/commons that appear reasonable to me, one is that common heritage created a more restrictive legal category (and means something different than the other terms), or that common heritage does not by itself involve a greater restriction on national and private activity in a common area. Some of the opponents of common heritage of mankind right now appear to be assuming a third interpretation, that common heritage involves certain restrictions found in UNCLOS and the Moon Agreement, and therefore so do the terms “res communis” and “commons,” but given that the idea of an international common area predates the term “common heritage” as used in the Moon Agreement and UNCLOS, this makes no sense. If common heritage of mankind does involve some new obligation, it makes no sense (either from a legal or advocacy-for-private-enterprise-in-space point of view) to attack older terminology.

Any discussion of “common heritage” needs to start with the understanding that the default situation in an international common area is for resource extraction to be allowed, and then to see if “common heritage” modifies that. Because of its associations, I do not support using the term common heritage of mankind in any new legal documents related to space, but I think some of my fellow advocates of commercial activity in space are attacking it in an unnecessarily circuitous way.

lawless.tech: Soon enough the International Space Station (ISS) will be decommissioned. After that, private companies will be able to build their own privately owned space stations. How should private space stations be regulated, if they are operated or owned privately? Should there be some antitrust laws applied to space business in general and to private space stations in particular?

Ian Perry: I am not sure how long it will take for the ISS to be decommissioned, in addition to talk of doing that, I have heard some talk of privatizing it. In any case, I think that many of the same arguments that apply to antitrust regulations on Earth would apply to antitrust regulations on new private space stations. There is a danger of stunting a developing industry by applying antitrust rules to it. According to the Outer Space Treaty this is a matter of national law, as space stations are legally classified as space objects and under national jurisdiction, which includes antitrust laws.

lawless.tech: As you said at 2017 Off Earth Mining Forum, private companies have a default right to extract resources from celestial bodies according to the Outer Space Treaty. However, the Moon Agreement prohibits to extract something from celestial and space bodies. Still, some lawyers like Frans von der Dunk, professor of Space Law in the Nebraska College of Law reckons that extracted resources could legitimately become one’s property under the Moon Agreement. What’s your opinion in this regard? Are there any risks related to space mining before the specific legal regime is established?

Ian Perry: As I suggested at the 2017 Off Earth Mining Forum, there is an argument that the Moon Agreement allows for mining, even without an international regime. That’s a major issue in Moon Agreement related discussions, as the Moon Agreement discusses an international regime. The Moon Agreement allows for extraction under the regime (and such an international regime could be one that recognizes a right of private extraction), the question is whether there is a moratorium in place until such an international regime is created. I am not a fan of the Moon Agreement, but the negotiation history of the Moon Agreement contains statements that such a moratorium would not be required.

lawless.tech: How to improve international space regulations? Should international regulators use the experience of countries that already have space laws in place, for example, the experience of the U.S. and Luxembourg?

Ian Perry: Other states wishing to explore space would, I think, be able to improve upon their current laws by copying the Luxembourg and U.S. laws and explicitly endorse private rights in extracted resources. In the U.S. enacting something like H.R. 2809 would improve our legal system by making it clear under what terms post-launch activities are legal and making it clear in the law that the U.S. is friendly to such activities. I think that with the right leadership we could improve on the space treaties now, but we might have a better chance of getting something better if we wait till there are humans who have moved into space with the intent of staying there permanently.

The current lack of real property rights on celestial bodies will run into problems eventually—it is not suited for a situation where there are multiple permanent human bases in close proximity to each-other. The Outer Space Treaty includes provisions about not harmfully interfering with the activities of other states which provide a legal doctrine for limiting harmful activity in the vicinity of other space objects even in the absence of real property rights, and there are concepts such as “safety zones” which provide a way to limit access in the vicinity of an activity in an international commons. However once there is sufficient density of human activity on celestial bodies these concepts may in practice become unworkable or start to resemble real property rights by another name. Many legislators at present likely do not see this as a pressing issue; given the difficulty in changing treaties many space actors (whether commercial, scientific, or other) seem likely to, in the short run, use safety zones as a way to avoid interference without rocking the boat politically by advocating for real property rights. For many policymakers, a high level of density of operations on celestial bodies appears a very distant prospect so many of the practical and legal issues which would arise in that situation are barely on the radar.

An issue that seems likely to have more support for additional agreements in the short term is space debris; I am not sure the best way to resolve that situation but there does seem to be some serious political desire to act on it. Another problem which needs to be resolved is the legal status of space objects after being transferred from one owner to another. When does liability shift? The Space Treaties do not contemplate this, subsequent international statements (specifically, the U.N. Principles Relevant to the Use of Nuclear Power Sources in Outer Space and the Principles Relating to Remote Sensing of the Earth from Space) indicate that liability for a space object shifts when an operator changes, but, while (according to accepted rules of treaty interpretation) subsequent agreements and practice are to be taken into account when interpreting a treaty, this would ideally be addressed in the text of a treaty.

lawless.tech: As a lawyer, you know that innovations are usually followed by regulations. In your opinion, should we change this sequence for space? Operations of private companies out there could affect the Earth and our lives directly, so is it possible to draw up an appropriate legislation in advance?

Ian Perry: I am not strongly opinionated on this. It depends on the specific context and specific proposals. I think that as there is more human activity located in space more people will be in a position to discern what sort of legal and regulatory approach is best, but good laws and regulations could make it easier for more human activity to move into space more quickly.

Conclusion

It looks like we’re on the brink of a new space era, where it’s private companies that are going to lead the way to the final frontier. However, even though only a handful of countries, like the U.S. and Luxembourg, have proper national legislation in this area, the international treaties look outdated and need a great deal of revision. Good news is that, apparently, it’s only a matter of time.


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