Concept of Private Property in Space - An Analysis

• Author: Jijo George Cherian & Job Abraham
• Position: B.A.LLB (Hons.) program, National University of Advanced Legal Studies, Kerala, India
• Pages: 211-220

Page 211

1. Introduction

Man in his quest to explore the realms that exist in this universe has been hindered at various stages by factors, such as lack of knowledge, lack of technical skills, geo-political considerations, etc. Currently, space is one of the realms that are the least explored by mankind, while taking into consideration the giant leaps humans have made in all the other spheres. Since the technical skills and cost of engaging in exploration is exceptionally high, space exploration is limited to a select few nations.

The very fact that exploration is done only by a select few countries and the concern that exploitation of resources available in space would be dominated by the select club of "space-faring" nations, led to formation of treaties stating that no nation may appropriate any portion of space or celestial bodies by claim of sovereignty through use, occupancy or by any other means. The first such comprehensive treaty on Space is the Outer Space Treaty, 1967, followed by other treaties on different aspects, which includes the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Convention on International Liability for Damage Caused by Space Objects, Convention on Registration of Objects Launched into Outer Space. While Outer Space Treaty prohibited nations from appropriating moon and celestial bodies using sovereign appropriation, the Moon Treaty went a step further in declaring moon and other celestial bodies to be the 'common heritage of all mankind' (Jeremy L. Z., 2006).

Though the concept of private property rights has been expressly declared to be non-existent vis-à-vis exploration of space, especially in light of the Outer Space Treaty, there is growing convergence of opinion that private property rights must be granted in some form to ensure that proper, optimum and unhindered use and utilization of resources available in space can be effectively implemented (Lynn M. F., 2003; Kurt Anderson B., 1993). The advent of this school of thought has received support even at the official level. Clause 4 of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, taking into Particular Account the Needs of Developing Countries (Annex to the Report of the Committee on the Peaceful Uses of Outer Space General Assembly Official Records, Fifty-first Session Supplement, 1996) which states that International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non- governmental; commercial and non commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development. The crux of the matter lies in the wording of Article 4. The said Article gives the State the ability to choose the most effective and appropriate mode which may be commercial, non-commercial, governmental, non-governmental, etc. In short, assuming that an alternative clean fuel is discovered on the moon, which can replace the current fuel, mining of such fuel can be done by a private enterprise, subject to the broad objectives of the moon treaty. In other words, the State may delegate certain functions to private bodies, relating to exploration and use of space.

This paper seeks to analyse the necessity of recognising property rights in space. To achieve the objective, we start with the scrutiny of background history of space law, wherein an examination of treaties as well as international law is made in the light of underlying reasons for such enactments, after which, a brief overview of the Treaties currently in vogue, along with implications of such treaties is carried out. The substantive part of the paper in turn deals with the interpretation of Treaties and International law emphasising upon challenges as Page 212 regards incorporation of property rights in the realm of space law along with possible solutions, while also examining the need, feasibility and possible methodology to incorporate private property rights in Corpus Juris Spatialis.

2. Corpus Juris Spatialis: An evolving Jurisprudence

The existing Corpus Juris Spatialis is indistinct, consisting mainly of treaties enacted under the auspices of the U.N. It gives an obfuscated view characterised by pedantry, as regards the issue of establishing a concrete regime of property rights on moon and other celestial bodies or parts thereof.

The power struggle between the United States and the former Soviet Union, the two nations involved in the race to space, along with the paranoia and suspicion resulting from the Cold War, fuelled the avoidance of a "race to own" any part of space. The former Soviet Union emerged as the pioneering leader when it launched the first satellite (Sputnik) into orbit in 1957 and landed the Luna IX on the moon in 1966, sending waves of alarm through the United States, which feared that the Soviets would stake a property claim in the moon. This prompted the United States to initiate treaties limiting activities in outer space to peaceful purposes and preventing any state from exercising ownership (Carol R. Buxton, 2004). Other nations feared that the two rising superpowers would dominate space and claim it for themselves.

The space race cooled greatly throughout the 1970s and 1980s. The two superpowers shifted their focus from exploring the Moon to developing and employing space stations. In 1972, President Richard Nixon and Soviet Premier Alexsei Kosygin signed the Apollo-Soyuz Test Project agreement. This agreement signalled the first international cooperative agreement between the United States and the U.S.S.R. The Russian space station Mir and American space station Skylab signalled the end-at least temporarily-- of efforts to put humans on celestial bodies. The U.S.S.R. and the United States continued their co-operation but separately probed the outer limits of the solar system with crafts such as the United States' Galileo and the Russian Veneras (Jeremy L. Z., 2006). Today, the international community is witnessing an immense interest in space exploration (BBC News, 2005). Many new developments have shaped the focus of space law in the 21^st century. In this context, a brief overview of each of the specific treaties is necessitated, after which a scrutiny of the provisions and also the new- fangled development in this regard.

2. 1 The Past: What went before?

Currently there are several treaties in effect that were created to address space exploration. Most of these treaties were drafted during the Cold War, when outer space was seen as the next battlefield and the moon as a potential military outpost. These fears were fuelled by the "space race" between the United States and the Soviet Union, which gained predominance after the later launched 'Sputnik', with each country trying to best the other. In 1959, the United Nations General Assembly established the standing Committee on the Peaceful Uses of Outer Space (COPUOS) to respond to this need.

Thus the first seeds of materialization of these efforts came in 1967, when the United Nations drafted the first comprehensive instrument in this regard which came to be commonly known as the Outer Space Treaty, which has 98 States parties, and is said to be the magna carta of Corpus Juris Spatialis. The provisions were inspired by the principle of freedom of seas and the Antarctic treaty. It was enacted with the objective that "[t]he 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."

It was followed up by the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement") and had 88 States parties, which stipulates that astronauts are to be regarded as envoys of mankind in outer space, and are to be rendered all possible assistance. This agreement has more elaborate assistance provisions than the outer space treaty. The 1972 Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention") had 82 States, which basically supplements the liability rules stipulated by the outer space treaty, in this convention the principles of the Outer Space treaty are elaborated in order to meet a variety of possible situations, including launchings by international organizations. The 1975 Convention on Registration of Objects Launched into Outer Space (the "Registration Convention") had 44 States parties and has 22 articles providing in considerable and important detail for the machinery of registration; however the articles fail to make clear a time by which the registration has to be made, seemingly a major pitfall.

Finally in 1979, the United Nations adopted the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement"), which had 10 States parties and governs the activities of states on the Moon and other...