Antarctica and Outer Space

 

What does Antarctica have to do with space law? The Soviet Union launched the first artificial satellite, Sputnik 1 into orbit on October 4, 1957. This was not only the entrance of mankind into outer space; it was also the event that triggered the emergence of Space Law. Coincidentally the Antarctic Treaty was signed on December 1, 1959 by the twelve countries whose scientists had been active in and around Antarctica during the International Geophysical Year (IGY) of 1957-58.

           The Antarctic Treaty System (signed into force in 1961) states as its primary purpose to ensure “in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”

Other Provisions of the Treaty state:

Antarctica shall be used for peaceful purposes only (Art. I).

Freedom of scientific investigation in Antarctica and cooperation toward that end … shall continue (Art. II).

 Scientific observations and results from Antarctica shall be exchanged and made freely available (Art. III).

If these provisions seem familiar that is becuase they are very similar to the Outer Space Treaty which believes, "that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development."

The exploration and use of outer space...be carried out for the benefit and in the interests of all countries… and shall be the province of all mankind (Art. I)

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 (Art. I).

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 (Art. II).

States Parties to the Treaty shall carry on activities in the exploration and use of outer space… in the interest of… promoting international cooperation and understanding (Art. III).

Antarctica, like outer space is considered to be an extreme and remote environment. So much so that the Mars Society, is conducting a 2,000 mile trans-Antarctic expedition "to test how extreme and remote environments affect human physiology, providing important insight into the challenge of sending humans to the Red Planet." The two year mission will focus on a variety of analog research, including:

Prolonged periods of complete isolation (7-9 months in duration)

Experiencing altered day-night cycles (including 3-4 months of complete darkness)
Exposure to extreme cold and weather (in the coldest desert with extremely low humidity)
Encountering chronic hypobaric hypoxia (including altitudes of up to 3,200 meters)

Antarctica and outer space are similar on a number of levels whether it is between the treaties that define the parameters of their use or the "extreme and remote" conditions. The other similarity is that both Antarctica and outer space are sovereignless. This was discussed in the following case regarding the Federal Tort Claims Act (FTCA):

Smith v U.S. 507 US 197 (1993)

In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Justice Stevens acknowledged Antarctica's similarity to outer space in his dissent:

"The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946."

    
     Antarctica, like outer space, is sovereignless, remote, and of scientific and military interest. The biggest differenc is when you slip in Antarctica you fall. When you slip in outer space you float.

Is Mining the Moon Legal?

     Google recently announced that they will award $20 million to the "first privately-funded company to land a robot on the moon and explore the surface by moving at least 500 meters and send high definition video back to Earth by 2015." There is a question of the legality of a private enterprise mining the moon. Whether the answer is yes it is legal, or no it is not legal is open to interpretation. Here are the sources that one would look to in order to formulate the argument:

Outer Space Treaty (OST): Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signatureJan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

     Article I of the OST provides that 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… and shall be the province of all mankind, free for exploration and use by all States who shall be free to access all areas of celestial bodies. Article II prohibits any national appropriation of outer space and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. These clauses do not forbid the exploitation of natural resources it is only prohibiting any one nation from claiming ownership of any celestial body.

    Article VI sets out the responsibilities of the States parties to the treaty:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

     Article VIII gives States jurisdiction and control over objects and personnel launched into space and retains jurisdiction while in outer space when the object and personnel are launched from that state. (emphasis added).

Moon Agreement: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22 (entered into force July 11, 1984)

     The Moon Agreement is largely thougth to be a failure. None of the major space fairing nations at the time signed this treaty. However more of the signatories to the Moon Agreement are becoming space fairing nations and it could possibly hold more weight as part of the International Treaty System. Article I, paragraph 1 of the Moon Treaty states that it applies not only to the moon, but also “to other celestial bodies within the solar system, other than the earth.” “The exploration and use of the moon shall be the province of all mankind (as in the OST) and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Article 11 paragraph 1 calls the moon and its natural resources the common heritage of mankind.”The “common heritage of mankind” notion was embraced by developing nations and interpreted as a principle that “celestial body resources are the common property of all the nations” and requires an international regime for the redistribution of wealth and technology among nations. It was these economic provisions of the Moon Treaty, rather than the demilitarization provisions in Article 3, that sparked controversy and are considered unfavorable to private enterprise.

      There are two (2) exceptions to the prohibition on the exploitation of natural resources in outer space: The first exception is if specific legal norms enter into force with respect to any of these celestial bodies. The second exception is if “an appropriate international regime is created to govern the exploitation of the natural resources."

Court cases:

Smith v U.S. 507 US 197 (1993)

     In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Nemitz v. U.S. 2004 WL 3167042 (D. Nev. April 26, 2004) Not Reported in F.Supp.2d

     NASA landed a robotic spaceship on Asteroid 433 "Eros" in 2001. Gregory W. Nemitz informed the space agency that he owned Eros, as he previously filed his claim to ownership of Eros at an online registry for celestial land claims, which a Seton Hall University School of Law professor started in the 1990s to stir discussion of space-related legal issues. The case was dismissed on the grounds that the U.S. Constitution does not recognize a cause of action for denial of property rights in outer space.

A number of law review articles have also been written on this topic. Here are a few worth looking into:

Ezra J Reinstein, Owning Outer Space, 20 Nw. J. Int'l L. & Bus. 59 (1999).

Jeremy L. Zell, Note, Putting A Mine On The Moon: Creating An International Authority To Regulate Mining Rights in Outer Space, 15 Minn. J. Int'l L. 489 (2006).

P.J. Blount, Jurisdiction in Outer Space: Challenges of Private Individuals in Space,

33 J. Space L. 299 (2007)

Timothy G. Nelson, The Moon Agreement and Private Enterprise: Lessons from Investment Law, 17 ILSA J. Intl & Comp L. 393 (2010).

Blake Gilson, Defending Your Clients Property Rights in Space: A Practical Guide for the Lunar Litigator, 80 Fordham L. Rev. 1367 (2011).

   Space law is still new and developing. Even though mining laws and property rights have been around for quite some time, it may take a while to iron out all of the details for the province of all mankind.