Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining.

• Author: Wrench, John G.

Has technology outrun the international law governing outer space? This dilemma presents itself as private entities become capable of space travel and new technology makes asteroid mining a reality. Although the Outer Space Treaty's "non-appropriation" principle prohibits nations from claiming sovereignty over space bodies, that restriction does not prevent resource extraction. The non-appropriation principle, interpreted alongside existing legal regimes, distinguishes between forbidden appropriation and permissible extraction. Consequently, the non-appropriation principle is most accurately viewed as a flexible premise from which the international community is free to fashion unique laws governing resource extraction in outer space.

Introduction I. International Treaties, National Ambitions, and the "Non-Appropriation" Principle A. International and National Laws Governing the Use of Outer Space B. Defining the Non-Appropriation Principle II. Legal Regimes Distinguishing Resource Extraction from Appropriation A. The Law(s) of the Sea: UNCLOS and the Seabed Act B. The Antarctic Treaty System C. The Prior Appropriation Doctrine Conclusion Introduction

In late 2017, a business magnate was busy launching reusable rockets into space twice a week. (1) Using his recently successful technology, Elon Musk plans to put one million colonists on Mars within 40-100 years. (2) Elsewhere, a former car salesman has made millions of dollars selling lunar real estate to celebrities. (3) To divvy up the acreage, Dennis Hope closes his eyes and points to a diagram of the moon, coloring in the newly sold property with a red pen. (4) Hearing of the sale, a legal scholar cites the Outer Space Treaty ("OST") and opines that Hope in fact owns nothing because "... [n]o one can own any property in space." (5) Hope believes that he has found a loophole--retorting that the OST prohibits states, not individuals, from owning space property.

Their debate is not merely academic. Technological developments of the 1960's gave rise first to Sputnik and, in the ensuing years, a full-blown space race between the Soviet Union and the United States. (6) That tension spurred the international community to create a series of treaties governing the uses of outer space, the first and chief among them being the (1967) Outer Space Treaty ("OST"). (7)

While the OST has achieved many of its goals--particularly by avoiding violence in space--the treaty's drafters could not foresee every challenge on the horizon. Technology has advanced rapidly since 1967, opening up outer space to increased government and private speculation. Asteroids, rich in the precious metals used in modern technology, have become something of a white whale for entrepreneurs and nations alike. As technology yields to these goals, fewer and fewer barriers remain.

One remaining, elusive obstacle to asteroid mining stems from the OST itself. Article II of the OST provides that outer space and celestial bodies are "... not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." (8) This restriction--the "non-appropriation" principle--means that, at a minimum, nations cannot claim sovereignty over celestial bodies. More controversially, some scholars suggest that the non-appropriation principle calls into doubt whether nations or businesses can "own" what they extract from asteroids or other space bodies. (9)

Under a legal regime that forbids parties from claiming sovereignty over underlying land--does it necessarily follow that parties cannot "own" resources extracted from that land? This question has been the subject of debate for those seeking to define the scope of available property rights under the OST. (10) Even if scholars agree that the non-appropriation principle applies equally to nations and their citizens, the scope of its restriction remains unclear.

This Note seeks to prove that the non-appropriation principle is, as a restriction on sovereign claims to land, no obstacle to outer space resource extraction. To prove that claim, Part I briefly walks through the history of space law. Part I continues by exploring competing interpretations of the non-appropriation principle, concluding that the non-appropriation principle is a narrow ban on actual claims of sovereignty, allowing an (albeit undefined) degree of ownership in extracted resources. Part II employs a different methodology than that used in related work on this subject, by showing that a robust system of rights in extracted resources is achievable, beginning with the non-appropriation principle's restriction. To that end, Part II identifies three legal regimes that share the non-appropriation principle's ban on sovereign claims, yet permit the ownership of extracted resources. The Note concludes that the non-appropriation principle is a useful and nuanced constraint, rather than a ban, on nations and businesses' abilities to establish property rights in extracted resources.

1. International Treaties, National Ambitions, and the "Non-Appropriation " Principle

   This part briefly frames the history of space law and considers various interpretations of the non-appropriation principle. To examine the scope of property rights available under the non-appropriation principle, we must first address whether it permits any ownership, and whether it applies to both nations and their businesses. After the restrictions of the non-appropriation principle are clearer, the following sections will explore what other property regimes have established within those same restrictions.

   1. International and National Laws Governing the Use of Outer Space

      Despite the novelty of outer space, the treaties governing it are unmistakably preoccupied with the era's reoccurring worries. Plagued by Cold War tensions, the several international treaties governing the use of outer space reflect tensions between the United States and former Soviet Union. (11) Like other treaties created in the aftermath of World War II, one of the international community's chief concerns was to prevent space from becoming a setting for nuclear conflict. (12)

      The first agreement, the "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies"--known informally as the Outer Space Treaty ("OST")--emphasizes the restriction on nuclear weapons in space. (13) Furthermore, the OST states that the exploration and use of outer space "... shall be the province of all mankind" and that states have "free access to all areas" of outer space." (14) The OST makes nations liable for actions of the governmental and non-governmental entities they launch into space. (15) Article II of the OST is of particular importance to our discussion because it contains the non-appropriation principle, which states that outer space "... is not subject to national appropriation by claim of sovereignty, by means of use or occupation by any other means." (16) After the OST, four treaties developed international law to address particular issues. The Rescue Agreement was negotiated in 1967 and sets forth nations' shared responsibilities to rescue astronauts in distress within their own territories and to similarly inform the Secretary General of the United Nations of spacecraft in distress. (17) The Liability Convention outlines a liability regime in which nations that launch an object--"launching states"--are liable for damage caused by that object. (18) The Registration Convention requires states to provide the United Nations with details about each launched object's orbit and function. (19)

      The last of these is the Moon Agreement, (20) which failed to gain international support. (21) The spacefaring nations' primary reason for rejecting the Moon Agreement is its moratorium on resource appropriation. (22) Article 11 provides:

      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 non governmental organization, national organization or non-governmental entity or of any natural person. (23) The Moon Agreement has not been ratified by any spacefaring nation and consequently has "little influence in international law." (24) Since the Moon Agreement's failure, nations and businesses have developed supplemental national policy and expressed ambitions to benefit from space exploration. (25)

      Concurrent developments in national space policy provide insight into how some nations interpret the scope of rights available under the non-appropriation principle. In 2015, the United States passed the "Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015 ("SPACE Act of 2015"). (26) The SPACE Act of 2015 asserts that citizens of the United States are "entitled to any asteroid resource or space resource obtained ... in accordance with applicable law, including the international obligations of the United States." (27) Former-Representative Jim Bridenstine's "American Space Renaissance Act" (28) aimed to overhaul the nation's space infrastructure by creating the "Office of Commercial Space Transportation" and establishing performance-based regulations. (29) More recently, Bridenstine was nominated by President Trump to be the 13th NASA Administrator, and was confirmed on April 23, 2018. (30) NASA's goals under Bridenstine have included public-private cooperation, long-term plans for settlements, and stabilized infrastructure for launches. (31) These national policies have consequently paved the way for a paradigm shift, which highlights the central role of businesses in space exploration.

      Promoting business activity in outer space through policy is one method nations have employed to harness the entrepreneurial capacity of businesses. For example, some states have devised favorable local tax schemes as a means to encourage...