does the world really need new space law?

[31]

BRYON C. BRITTINGHAM*

Does the World Really Need New Space Law?

I. Why Go At All? ...................................................................... 32 II. What is the Law?..................................................................... 34 III. Property Rights in Outer Space ............................................... 36 IV. What is the Common Heritage Doctrine?................................ 39 V. Property Rights Without a Sovereign...................................... 41 VI. New Body of Law?.................................................................. 47 Conclusion.......................................................................................... 54

As we enter this century, Asia has joined Europe and North

America as active participants in space. Where before we had three groups, the United States, USSR (Russia), and Europe, with launching facilities and extraterrestrial probes, they are now joined by other nations such as China,1 Japan,2 and India.3 China has gone even further by sending men into Earth orbit.4 Some private companies hope to become active in space as well, such as Virgin Galactic5 with its private launching facilities in New Mexico, called Spaceport America.6 Since the beginning of this century, international and commercial interests in space have continued to grow.

* Teaches Business, Law, and English for a Specific Purpose (ESP) courses in various countries to professionals and at overseas universities. J.D., Ohio State University Moritz College of Law; B.A., Political Science and Economics, University of Oregon.

1 China’s Lunar Probe Chang’e-1 Impacts Moon, China National Space Administration, Mar. 5, 2009, http://www.cnsa.gov.cn/n615709/n620682/n639462/ 168044.html.

2 Shino Yuasa, Japan’s First Lunar Probe Ends Mission, ASSOCIATED PRESS, June 11, 2009, http://www.usatoday.com/tech/science/space/2009-06-11-japan-lunar-probe_N.htm.

3 Chandrayaan-1—India’s First Scientific Mission to the Moon, http://isro.gov.in/ Chandrayaan/htmls/home.htm (last visited Mar. 26, 2010).

4 China’s Lunar Probe Chang’e-1 Impacts Moon, supra note 1. 5 Virgin Galactic Home Page, http://www.virgingalactic.com (last visited Mar. 26,

2010). 6 Spaceport America Home Page, http://www.spaceportamerica.com (last visited Mar.

26, 2010).

32 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 12, 31

Although the concept of mining outer space seems rather far-fetched and in our distant future, so did the concept of space exploration a mere century ago. All of the spacefaring nations have already begun to investigate such possibilities. All have recently sent probes or are sending probes to the Moon to carefully map what resources exist and in what quantities. Japan,7 India,8 China,9 and the European Space Agency10 have sent probes within the past decade. The United States currently has the Lunar Reconnaissance Orbiter orbiting the Moon.11 All of these orbital probes have or had equipment to specifically map the Moon’s resources. It is only a matter of time before some one or group finds something of great enough value to go there and begin mining operations. With the recent discovery of water on the Moon, this possibility becomes even greater since its presence makes a lunar base a bit cheaper and more practical.12

But what are the legal ramifications of mining settlements on the Moon? Can a private company or consortium establish a claim on the Moon that would secure the necessary rights to profit from lunar resources? Unfortunately, these questions cannot be fully resolved with the present space law.

I WHY GO AT ALL?

“Some have said that ‘[t]hree principle forces—the academic, military, and commercial—interact to impel humanity into space.’

7 SELenological and ENgineering Explorer “KAGUYA” (SELENE), Japan Aerospace Exploration Agency, http://www.jaxa.jp/projects/sat/selene/index_e.html (last visited Mar. 26, 2010).

8 Rina Chandran, India’s Lunar Probe Lands on the Moon, Sends Images, REUTERS, Nov. 14, 2008, http://www.reuters.com/article/scienceNews/idUSTRE4AD5GT20081114.

9 Chinese Lunar Probe Hits Moon, Mar. 1, 2009, http://www.upi.com/Science_News/ 2009/03/01/Chinese-lunah-probe-hits-moon/UPI-41451235965463.

10 Europe Probe Arrives at the Moon, BBC NEWS, Nov. 16, 2004, http://news.bbc.co.uk/2/hi/science/nature/4015227.stm.

11 NASA.gov, Lunar Reconnaissance Orbiter, http://www.nasa.gov/mission_pages/ LRO/main/index.html (last visited Mar. 26, 2010); see also John Matson, NASA’s Lunar Reconnaissance Orbiter Enters Orbit Around Moon, SCIENTIFIC AMERICAN, June 23, 2009, http://www.scientificamerican.com/blog/60-second-science/post.cfm?id=nasas-lunar -reconnaissance-orbiter-2009-06-23.

12 News Release, U.S. Geological Survey, Space Images Find Water on Moon (Sept. 24, 2009), http://www.usgs.gov/newsroom/article.asp?ID=2315; see also Andrea Thompson, It’s Official: Water Found on the Moon, Sept. 23, 2009, http://www.space.com/scienceastronomy/090923-moon-water-discovery.html.

2010] Does the World Really Need New Space Law? 33

Although the academic and military forces have played a significant role for decades, it is now the era of private commercial utilization of space.”13

I agree that the twenty-first century will see this private commercial utilization of space. Although scientific interest has taken us, over the past fifty years, to the Moon, Mars, and other bodies in space, few of us can plainly see the benefits of this scientific investigation. But if the purpose of going into outer space is commerce, then I believe that most people can understand and be willing to spend the billions doing so if there are millions, if not billions, more to be made. I would like to focus on the Moon since it is closest (only three days by rocket) and I believe that within the next twenty-five years, there is a strong possibility some nation or nations might be going to the Moon. But what could be mined from the Moon and returned to Earth for a profit? If one is to have commerce, one must have something to gain. One excellent possibility, Helium-3 (He-3), is given to us by Professor of Nuclear Engineering, Gerald Kulcinski.14

As another author explained: Helium-3 is a helium isotope that is rare on Earth but is believed to be abundant on the Moon. The Apollo program’s research on the lunar surface indicated that microwaves could be used to draw helium-3 out of the Moon’s surface. Once removed, the isotope can be used in a fusion reaction that is cheap to produce, long lasting, and produces nominal amounts of radioactive waste.15

Sending mining equipment to the Moon and then transporting goods from the Moon to the Earth would be quite expensive; that is why He-3 is such a good example since a small quantity would be extremely valuable back here on Earth.16

13 John S. Lewis & Christopher F. Lewis, A Proposed International Legal Regime for the Era of Private Commercial Utilization of Space, 37 GEO. WASH. INT’L L. REV. 745, 746 (2005) (citing Art Dula, Free Enterprise and the Proposed Moon Treaty, 2 HOUS. J. INT’L L. 3, 23 (1979)) (alteration in original) (footnote omitted).

14 Eric R. Hedman, A Fascinating Hour with Gerald Kulcinski, SPACE REVIEW, Jan. 16, 2006, http://www.thespacereview.com/article/536/1.

15 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, 505–06 (2006) (footnotes omitted).

16 Harrison H. Schmitt, Mining The Moon: An Apollo Astronaut Argues that with its Vast Atores of Nonpolluting Nuclear Fuel, our Lunar Neighbor Holds the Key to Earth’s Future, POPULAR MECHANICS, Oct. 2004, available at http://www.popularmechanics .com/science/air_space/1283056.html?page-1.


“A single space shuttle load of He-3 could supply the energy for the United States for one year. To put it in perspective, the Moon’s reserves of He-3 contain ten times more energy than all the economically recoverable coal, oil, and natural gas on Earth.”17

Therefore, the Moon’s surface could contain something of great value when brought back to Earth and, if so, nations and/or private companies will want to get it. The next major hurdle becomes one of legality. What is the law on the appropriation of lunar resources? The problem is that the modern body of space law is extremely vague on the concept of private appropriation of resources in outer space. No country or corporation would stake billions of dollars on the chance that it would bring its container of He-3 back to Earth and all the nations would say it has to share.

“[I]t is imperative that these issues be recognized and addressed at an early stage in the implementation of the vision, otherwise there will be little significant private sector activity associated with the development of space resources, one of our key goals.”18

II WHAT IS THE LAW?

A body of space law does currently exist, contained mostly in five international treaties. The first and most important of these treaties is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which is commonly known as the Outer Space Treaty.19 It was drafted by the U.N. Committee on the Peaceful Use of Outer Space (COPUOS). This treaty has been ratified by 100 nations, including all of the nations involved in space,20 so it is widely accepted as the international law governing outer space activities.

17 Kelly M. Zullo, Note, The Need to Clarify the Status of Property Rights in International Space Law, 90 GEO. L.J. 2413, 2434 (2002) (footnote omitted).

18 REPORT OF THE PRESIDENT’S COMMISSION ON IMPLEMENTATION OF UNITED STATES SPACE EXPLORATION POLICY, A JOURNEY TO INSPIRE, INNOVATE AND DISCOVER 34 (June 2004), available at http://govinfo.library.unt.edu/moontomars/docs/ M2MReportScreenFinal.pdf.

19 Treaty on Principles Governing the Activities of States in the Exploration and Usage of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S 205 [hereinafter Outer Space Treaty].

20 U.N. Committee on the Peaceful Uses of Outer Space, Report of the Legal Subcommittee on its Forty-eighth Session, art. 31(a), U.N. Doc.A/AC.105/935 (Apr. 20, 2009), available at http://www.oosa.unvienna.org/pdf/reports/ac105/AC105_935E.pdf.


This treaty has spawned three subsequent treaties: the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement);21 the Convention on International Liability for Damage Caused by Space Objects (the Liability Convention);22 and the Convention on Registration of Objects Launched into Outer Space (the Registration Convention),23 all of which have been widely accepted by the international community. The names of the treaties speak clearly to their contents and intentions, dealing mainly with issues of liability for persons and materials launched into space but not addressing the issue of land or mineral rights on celestial bodies.

The latest treaty dealing with outer space is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Treaty).24 However, the Moon Treaty has been largely rejected by the international community25 due mostly to its provisions that would make outer space resources the “common heritage of mankind.”26 “Although the Moon Treaty is valid law, it is in effect only against its signatories and is therefore not considered a part of space law by American commentators.”27 Only thirteen nations have ratified the treaty, none of them spacefaring,28 so this treaty can hardly be considered representing any form of international legal consensus. “Indeed none of the signatories of the Moon Treaty

21 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119.

22 Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187.

23 Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T 695, 1023 U.N.T.S. 15.

24 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 12, 1979, 1363 U.N.T.S 21 [hereinafter Moon Agreement].

25 See Report of the Legal Subcommittee on its Forty-eighth Session, supra note 20, art. 31(e).

26 Moon Agreement, supra note 24, art. II; Glenn Harlan Reynolds, Key Objections to the Moon Treaty, http://www.nsschapters.org/hub/pdf/MoonTreatyObjections.pdf.

27 Adam G. Quinn, Note, The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space, 17 MINN. J. INT’L L. 475, 482 (2008).

28 U.N. Office for Outer Space Affairs, Agreement Governing the Activities of States on the Moon and Other Celectrial Bodies, http://www.oosa.unvienna.org/oosa/SpaceLaw/ moon (last visited Mar. 26, 2010).


has space travel capability, suggesting that it does not reflect any practical concerns in space exploration and development.”29

III PROPERTY RIGHTS IN OUTER SPACE

When I began, the responses I received from people when I said I was researching property rights in outer space led me to believe this topic was too fringe to be considered academically by the legal community. I discovered that many have indeed thought about it quite a bit. Not surprisingly, the discussion centers around interpretations of the Outer Space Treaty. The Outer Space Treaty speaks to how space resources are to be handled, but unfortunately (perhaps intentionally) the language of the treaty contains ambiguous phrases that are open to interpretation.

The Preamble highlights the “prospects” and “common interest” of mankind, and recommends that the “exploration and use of outer space” are to be “for the benefit of all peoples.” Article I reiterates the intentions stated in the Preamble, stating that “the exploration and use of outer space . . . 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.”30

From these words, the treaty clearly states that no nation can be barred from exploring space. These words, sounding very noble in their intent, do little to shed any light on actual property rights. However, we do know that any use of space should not be to the detriment of any nations and space should, in some way, be within the scope or jurisdiction of the entire human race. This goal has been accomplished to the extent that no one has been harmed by others’ activities in space and no one nation has claimed any part of space for itself. But we all know that the direct benefits of space travel, that is scientific knowledge and new technologies, have largely gone to those nations that travel into space and are in no way the direct benefit of us all.

29 David Collins, Efficient Allocation of Real Property Rights on the Planet Mars, 14 B.U. J. SCI. & TECH. L. 201, 206 (2008).

30 Brandon C. Gruner, A New Hope for International Space Law: Incorporating Nineteenth Century First Possession Principles into the 1967 Space Treaty for the Colonization of Outer Space in the Twenty-first Century, 35 SETON HALL L. REV. 299, 325 (2004) (citing Outer Space Treaty, supra note 19, pmbl., art. I) (alteration in original) (emphasis omitted).


So although Article I of the Outer Space Treaty claims that the exploration and use of space is for the benefit of all nations, in practice it is not. The concept of “the benefit and in the interests of all countries” could possibly be understood as “the benefit” of the peaceful use and that a nonmilitary use of space is “in the interest of all countries.” This interpretation is similar to the concepts expressed in the resolution to create NASA. “In fact, Congress codified this principle in the Act establishing NASA by declaring that ‘it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind.’”31

The ambiguous phrase that leaves so much to interpretation is “The exploration and use of outer space . . . shall be the province of all mankind.”32 As I mentioned above, the technology and knowledge derived from the exploration of space are not considered the province of all mankind. They are the province of all mankind only in that they add to our history and knowledge as a species. Although no nation expects this technology or knowledge to be the direct benefit of all mankind, many nations believe the Outer Space Treaty should be interpreted so that resources garnered from outer space should belong to all peoples under the Common Heritage doctrine, which I will return to later.

The remaining sections of the Outer Space Treaty do little to clarify the notion of private outer space property rights. For example, Article II does little to settle this issue, thought it does settle the issue as to national appropriation of space territory. “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.”33 Article II eliminates and outlaws any claims of “national appropriation by claim of sovereignty [or] by means of use or occupation” in outer space and its celestial bodies.34

Little doubt exists as to the intention of Article II, which is to state that no nation can claim private ownership of any part of space. Even if, say, the United States builds a base on the Moon, the base still

31 Zullo, supra note 17, at 2419 (quoting National Aeronautics and Space Act of 1958, 42 U.S.C. § 2451(a) (2001)).

32 Outer Space Treaty, supra note 19, art. I. 33 Id. art. II. 34 Id.


belongs to the United States,35 but the land underneath or surrounding cannot be claimed by the United States nor may the United States stop any other nation from using that very same land. Articles III and IV also shed little light on the subject of distribution of resources but do reinforce the notion that the use and exploration of space be peaceful.

Article III demonstrates . . . that parties to the Treaty shall conduct their activities in outer space “in accordance with international law” and “in the interest of maintaining international peace and security.” Article IV, by extension of its proclamation that “the moon and other celestial bodies shall be used . . . exclusively for peaceful purposes.”36

What about the remainder of the treaty? None of it directly or indirectly speaks to appropriation by private entities.

Additionally, the Outer Space Treaty contains, among others, provisions prohibiting the placement of weapons in Earth orbit or on extra-terrestrial bodies; requiring the rescue of astronauts; assigning responsibility and liability for activities in space; granting jurisdiction over moving objects (and anyone aboard) launched into space to the government of the nation in which the object is registered; and requiring states to report their activities in space.37

Since the Outer Space Treaty can give us no specific guidance, is there another legal source we can turn to? There was a subsequent treaty that attempted to speak more directly on this issue, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement). Unfortunately (or fortunately for future space prospectors) the Moon Agreement, which would seem to clearly eliminate any private appropriation of outer space resources,38 was largely rejected by the international community. So although the Moon Treaty speaks directly to private appropriation, it provides us with little insight due its lack of acceptance globally.

Since the world has shown little interest in the Moon Treaty and there have been no attempts since to address this issue by treaty, a big question remains: since national appropriation is forbidden, what

35 Michael J. Listner, The Ownership and Exploration of Outer Space: A Look at Foundational Law and Future Legal Challenges to Current Claims, 1 REGENT J. INT’L L. 75, 80–81 (2003).

36 Gruner, supra note 30, at 325 (citing Outer Space Treaty, supra note 19, arts. III, IV). 37 Ryan Hugh O’Donnell, Staking a Claim in the Twenty-first Century: Real Property

Rights on Extra-Terresterial Bodies, 32 U. DAYTON L. REV. 461, 471 (2007) (second alteration in original) (footnotes omitted).

38 Moon Agreement, supra note 24, art. 11, ¶ 3.


about private appropriation? Even if private appropriation is not prohibited, would a private company get to reap the benefits of its labor? Does “the province of all mankind” have the same or similar meaning to the “common heritage of mankind” calling for an equitable distribution?

IV WHAT IS THE COMMON HERITAGE DOCTRINE?

There are five elements generally considered central to the modern Common Heritage doctrine: 1) the area is not subject to national appropriation; 2) all states share in the management of the area; 3) the benefits derived from exploitation of resources in the area must be shared with all regardless of the level of participation; 4) the area must be dedicated to peaceful purposes; and 5) the area must be preserved for future generations.39

The largest issue for commercial use is the third element–“the benefits . . . must be shared with all regardless of the level of participation.” As you can imagine, most of the developed nations desire a less direct interpretation of the idea of “sharing.” “The United States put forth the [developed nations’] belief that the Common Heritage Concept allowed appropriation and exploitation as long as it was done for peaceful purposes and mankind benefited in some way.”40 The developed nations prefer a reading that the province of all includes bringing those resources to the world at a fair market price, so all mankind benefits indirectly rather than directly, that is “in some way.”

The developing nations, specifically those nations without the ability to explore or take advantage of space, favor an interpretation of the Outer Space Treaty that makes the common heritage, as well as the province of all, an equitable distribution not based on contribution or effort.

Referring to it as a “common property” approach, less-developed nations assert that there should be common management of such areas, with a singular group possessing exclusive rights to exploit natural resources and distribute those resources equally to all

39 Lynn M. Fountain, Note, Creating Momentum in Space: Ending the Paralysis Produced by the “Common Heritage of Mankind” Doctrine, 35 CONN. L. REV. 1753, 1759 (2003) (footnote omitted).

40 Zell, supra note 15, at 496 (footnote omitted).


nations, regardless of which nations actually funded the effort (either economically or by developing the technology or both).41

Many developing nations might favor an equitable distribution of benefits reaped from outer space resources regardless of contribution, but have so far never considered this to mean the nations that do go to space are obligated to give up their technology so that nations without this technology can go themselves. Further, no nation can be blocked from using space for peaceful, scientific purposes, but once again, no one is forcing each nation to share knowledge gained from this scientific use. Perhaps an example of how the spacefaring nations practice the concept of the province of all mankind with each other is in order.

The International Space Station (ISS) Agreement,42 which recognizes all space treaties (with the notable exception of the Moon Treaty),43 does NOT state that the benefits belong to all nations equally, but that the knowledge gained in experiments on the station are the intellectual property of the nation whose module the research was conducted in, maintaining intellectual property rights.44 So although the ISS Agreement recognizes the Outer Space Treaty, discoveries aboard the International Space Station are not strictly the Common Heritage of Mankind, giving us some insight into what the major spacefaring nations conceptualize as the “province of all mankind.”45

No corporation (or other private business entity) would make a large investment knowing that, not only would there be little or no profit, but most likely the undertaking would lose the bulk of its investment to non-contributors. So, for private appropriation to work, first we must assume, as I did earlier, that like technology and knowledge, the benefits will be peacefully obtained and shared with humanity in a less direct, more commercial form. Just like certain benefits that have been gained from other forms of technological innovation, the human race benefits from space exploration by having

41 Carol R. Buxton, Property in Outer Space: The Common Heritage of Mankind Principle vs. the “First in Time, First in Right” Rule of Property Law, 69 J. AIR L. & COM. 689, 692 (2004) (emphasis omitted).

42 Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, TIAS No. 12927.

43 See id. art. 2, § 1. 44 Id. art. 21, § 2. 45 Id.


products that have been properly licensed and then marketed to the public.

“In sum, the ‘Common Heritage’ to be enjoyed by all mankind may be seen modernly as a hybrid of: equitable access for all, some equitable benefits for all (excluding non-peaceful purpose technology), and equitable rights to peace in space.”46

If the spacefaring nations of the world use He-3 in fusion reactions instead of burning fossil fuels such as coal or natural gas for energy, doesn’t this benefit the world? Wouldn’t it vastly reduce greenhouse gases? Wouldn’t it greatly decrease the demand for finite fossil fuels, making them more available for all the various plastics and polymers used in our technologies? Wouldn’t this help free many developed nations from dependence on a politically unstable region? Wouldn’t these benefits to the world help promote peace for all mankind? “[W]hile the private enterprise receives the possible financial benefit from the risky undertaking, people throughout the world stand to benefit because space resources will conserve the Earth’s scarce natural resources, further scientific discovery, and boost the world economy.”47

V PROPERTY RIGHTS WITHOUT A SOVEREIGN

Assuming that “the province of all mankind” does not mean “the common heritage of mankind” and corporations could mine the Moon and keep their profits or, alternatively, then the province of all mankind includes a less direct benefit to all. Can we have secure property rights without a sovereign?

Can the supranational organizations lend us a hand? The U.N. Charter protects a nation’s property from expropriation by another nation.48 However, if one domestic corporation tries to seize the land or resources of another domestic corporation, it is not an issue for the U.N., but of the sovereign nation of whose territory in which the action took place.49 The World Trade Organization protects the activity of corporations but only as citizens of a sovereign nation that

46 Daniel A. Porras, Comment, The “Common Heritage” of Outer Space: Equal Benefits For Most of Mankind. 37 CAL. W. INT’L L.J. 143, 172–73 (2006).

47 Zullo, supra note 17, at 2433. 48 U.N. Charter art. 2, para. 4. 49 Id. art. 2, para. 7.


is a signatory of the treaty.50 Corporations acting in space could not ask these supranational organizations to enforce their claim since that would require a nation to extend its sovereignty “by any other means.”51

So the question remains, can you secure property rights without a sovereign? Many scholars believe that property rights can be secured without sovereignty. These scholars assert that the Outer Space Treaty does not ban private property and that private corporations could establish a legal claim to property on the Moon and other bodies in outer space.52 Several legal scholars agree with this perspective by using the legal doctrine of expressio unius est exclusio alterius, that is, if something is not expressly forbidden, it cannot be inferred that it is forbidden.53 Because the Outer Space Treaty does not expressly forbid nongovernmental appropriation, these scholars point to the world’s rejection of the Moon Treaty, which attempts to forbid private appropriation, as evidence that many nations have no intent to eliminate the possibility of private claims. 54

Some scholars have looked to other sources of law to answer this question. As I attempt to create a scenario (mining He-3) that gives us a commercial purpose for lunar settlement, Alan Wasser, Chairman of the Space Settlement Initiative, looks for another method for the future lunar settlement to make its money. He does not believe that mining lunar resources could be profitable. “Because of the astronomical expense of transporting rocks back to Earth for sale, it is impossible to make a profit selling rocks.”55 Therefore, he puts forth the idea of land claims recognition, in which a private consortium would lay claim to a large portion of the Moon’s surface and the

50 Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, art. 3, para. 2.

51 Id. art. 3, § 1; Outer Space Treaty, supra note 19, art. XI. 52 See, e.g., David Kopel & Glenn Reynold, The New Frontier: Preparing the Law for

Settling on Mars, NAT’L REV. ONLINE, June 4, 2002, http://www.nationalreview.com/ kopel/kopel060402.asp; Joanne Irene Gabrynowicz, The International Space Treaty Regime in the Globalization Era, AD ASTRA, Fall 2005, at 30, available at http://www .space-settlement-institute.org/Articles/IntlSpaceTreatyGabryno.pdf; Pat Dasch, Michael Martin-Smith, & Anne Pierce, Nat’l Space Society, Presentation at the 50th International Astronautical Congress: Conference on Space Property Rights: Next Steps (Oct. 4–8, 1999).

53 See Alan Wasser & Douglas Jobes, Space Settlements, Property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?, 73 J. AIR L. & COM. 37, 44–45 (2008).

54 Id. at 42. 55 Id. at 74.


corporate settlers would sell plots of lunar territory to people on Earth.56 “Space settlements cannot pay their bills by farming, fur trading, mining, or anything else that requires transporting a physical product back to the Earth. The only product identified so far that a settlement could sell back on Earth profitably enough to justify the settlement’s creation is recognized land deeds.”57

Legally, the argument starts with using a civil law approach to real property rather than a common law approach. Under common law, the sovereign takes controls of the property and conveys the property rights to an individual. “With common law, ever since William ‘The Conqueror’ confiscated the old nobility’s lands after 1066, all property rights have derived ultimately from the King, or sovereign.”58 Under civil law and the concepts of res nullius, where an individual first takes possession of the land to claim ownership, and pedis possessio, where a person adds their labor to it; the sovereign then recognizes the claim of that individual.59

However, in countries like France, which follow “civil law,” property rights have never been based on territorial sovereignty. Instead, they are based on the “natural law” principle of pedis possessio or “use and occupation”—that individuals mix their labor with the soil and create property rights independent of government. Government merely recognizes those rights.60

Therefore, if this private group did, in a sense, mix their labor with the soil, then the respective governments of the various shareholders would merely recognize their legal claim without conveying their national sovereignty.

[I]f a settlement is established and the settlers claim private ownership of land around their settlement, and a dozen of Earth’s nations recognize the settlers’ claim, it is not reasonable to say that all dozen nations are trying to appropriate the land and thus are violating the Outer Space Treaty.61

56 Id. at 65–66. 57 Id. at 68. 58 Id. at 48. 59 Richard A. Epstein, International News Service v. Associated Press: Custom and

Law as Sources of Property Rights in News, 78 VA. L. REV. 85, 85 (1992); “[Res nullius has] been a central term in the law of nations for 500 years. . . . Its origin is really in the writings of Aristotle, in the idea that we must exploit nature to exercise ownership over nature, and where we don’t do this, our ownership is void.” Terra Nullius—The History (ABC Radio National—Counterpoint broadcast Aug. 16, 2004), available at http://www.abc.net.au/rn/talks/counterpoint/stories/s1172945.htm.

60 Wasser & Jobes, supra note 53, at 49 (footnote omitted). 61 Id. at 55.


Forgetting that if there is nothing of value to bring back from the Moon and no one would buy land there, investors would have to bet billions of dollars on this hopeful legal interpretation of property rights and on the outside chance that many countries would risk possible violation of the Outer Space Treaty by recognizing those claims. Investors balance return with risk and here the risk might be too high compared to the return.

Indeed, a private company, Archimedes Institute, did try to confer property rights on an asteroid named Eros to a private company, Orbital Developments, owned by George Nemitz. Nemitz attempted to charge NASA a small landing fee (twenty dollars) for landing the NEAR space probe.62 “In his February 16, 2001 letter, Nemitz claimed that his company, Orbital Development, had owned 433 Eros since March 3, 2000. Nemitz based his ownership on a property claim filing with the Archimedes Institute.”63

NASA’s General Counsel Edward A. Frankle refused to pay the fee and rejected the claim saying that Nemitz’ “individual claim of appropriation of a celestial body (the asteroid 433 Eros) appears to have no foundation in law.”64 Nemitz responded by filing a complaint in federal court.65 The U.S. Attorney General filed a Motion to Dismiss, which the federal court granted.66 “[T]he lower Court’s ruling and the opinion of the former General Counsel of NASA seem to indicate that the United States government and the federal courts will not recognize any sort of real property rights in the absence of enabling legislation.”67

The Archimedes Institute is a private institute, not a sovereign nation, and does not presently have any legal claims to celestial territory; therefore, “the Archimedes Institute does not have the authority to confer property rights.”68 However, neither Orbital Development nor the Archimedes Institute actually took possession of

62 Zullo, supra note 17, at 2414–15; see also Leonard David, NEAR Landing Sparks Claim-Jumping Dispute, Space.com, Feb. 14, 2001, http://www.space.com/mission launches/missions/near_claim_010214.html.

63 Zullo, supra note 17, at 2415 (footnote omitted). 64 Wayne White, Homesteading the High Frontier, AD ASTRA, Fall 2005, at 32. 65 Id. 66 VIRGILIU POP, WHO OWNS THE MOON: EXTRATERRESTRIAL ASPECTS OF LAND AND

MINERAL RESOURCES 42–43 ( 2009). 67 White, supra note 64. 68 Zullo, supra note 17, at 2416 (footnote omitted).


the asteroid, so Wasser’s theory of use and occupation has yet to be truly tested.

Let us return to the scenario where we create a lunar settlement with the intent of bringing something of value back to Earth. One problem is just making a valid legal claim; another problem arises in protecting that claim from others. Say you are going to mine some valuable resources from outer space. You spent the millions of dollars prospecting to find just the right spot and you set up a facility large enough to properly exploit the resources in that area. Alas, someone else comes along and builds their smaller, cheaper facility next to yours, knowing that you have already found the sweet spot. What is your legal recourse?

A real estate interest in the land and its surrounding resources cannot be granted by any nation due to Article II of the Outer Space Treaty.69 Perhaps if you could get a nation to recognize (not grant, using Wassar’s approach) your claim then you could use its courts to bring a property rights suit against the intruder. But then the question becomes, can the court get jurisdiction over the claim jumper? In addition, establishing a settlement also creates an issue with Article I granting “free access to all areas of celestial bodies.”70 If you set up your base, you will necessarily be limiting access to the area you wish to exploit. Your new unwanted neighbor can easily point to this section of the treaty to defend its behavior since it should have “free access to all areas.”

A group of developing nations recently attempted to lay claim to specific parts of outer space when they signed an agreement called the Declaration of the First Meeting of Equatorial Countries, known as the Bogotá Declaration, that was adopted December 3, 1976.71 “The declaration claimed the right of equatorial states to exercise national sovereignty over the arcs of the geostationary orbit (GSO) that are directly over their territories.”72

The International Telecommunication Union (ITU), an agency of the U.N., acts as a trustee for the geostationary orbital positions. 73

69 Outer Space Treaty, supra note 19, art. II (“Outer space . . . is not subject to national appropriation . . . .”).

70 Id. art. I. 71 Thomas Gangale, Who Owns the Geostationary Orbit?, 31 ANNALS OF AIR AND

SPACE L. 425, 426 (2006). 72 Id. 73 International Telecommunication Union [ITU] Constitution, ch. 1, art. 1, § 2(a),

available at http://www.itu.int/net/about/basic-texts/constitution/chapteri.aspx; About ITU, http://www.itu.int/net/about (last visited Mar. 26, 2010).


This is where most nations and corporations want their communications satellites since the satellites placed in Geostationary Earth Orbit (GEO) or Geosynchronous Orbit (GSO) constantly remain over the same geographic location and therefore are able to broadcast continuously to a specific region on Earth. The ITU temporarily grants the owners of these satellites specific GEO positions on a first-come, first-served basis74 so that no spaces remain reserved and therefore unused. Since the area far above the nations of the Declaration is where many of the GEO positions exist and since these GEO positions are scarce to begin with and therefore valuable, those nations wanted to claim them and sell them for their national gain.

This claim was in apparent contravention to the 1967 Outer Space Treaty, which states that “outer space . . . is not subject to national appropriation by claim of sovereignty . . . .” However, the Bogotá Declaration asserts that “there is no valid or satisfactory definition of outer space,” and that the GSO “must not be considered part of the outer space.” The legal status of the GSO is tied to the controversy over a legal definition of outer space.75

Since the Outer Space Treaty contains no definition of what is “outer space,” the Bogotá Declaration still remains a controversy.76 Further, it has been largely rejected by the non-Bogotá nations since GEO positions are considered by many nations to be within the definition of outer space and not in a nation’s air space.77 The Declaration has also failed to gain acceptance due to Article I of the Outer Space Treaty and its granting of free access to all areas. “The reasoning of the Bogotá Declaration is flawed, however, because it is impossible to grant exclusive rights to portions of GEO and at the same time provide equitable access to GEO. If equatorial states are granted exclusive rights to GEO slots, other states are necessarily

74 Lawrence D. Roberts, A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, 15 BERKELEY TECH. L.J. 1095, 1113 (2000).

75 Gangale, supra note 71, at 426 (first alteration in original). 76 Lunar Prospector, NASA, Outer Space Treaty (Aug. 31, 2001),

http://lunar.arc.nasa.gov/results/ice/ost.htm (“The Outer Space Treaty makes no attempt to define where space begins. A current definition is the lowest altitude that permits a vehicle to orbit the Earth without entering the earth’s atmosphere. That altitude is approximately 100 km (62 miles). Below that altitude, air law with all of its sovereignty ramifications applies.”).

77 Gangale, supra note 71, at 441. “The upper limit of airspace (and conversely, the lower limit of outer space) under discussion by COPUOS over the past four decades has been in the range of 90 to 110 km, well below the GSO altitude of 35,787 km.” Id. at 437.


precluded from access.”78 Since what the Bogotá nations wanted would forever limit access to these areas of space and the ITU grants a temporary license to use that particular GEO position, guaranteeing access to those entities that do not presently have the valuable locations is still possible. This disagreement shows that the international community would most likely not support any enterprise that limited others’ access to specific areas of space.

Going back to the hypothetical mining operation on the Moon, even if you do succeed in legally establishing your claim, a court decision is only as good as its enforcement mechanism. Even if the court grants you injunctive relief, how can the court enforce it? Call the Space Marshal? Short of using your own personal militia to force the claim jumper to go away, you would have little recourse. It is doubtful that any nation would use its own police/militia to protect your claim, which would most likely directly violate peaceful use as described throughout the Outer Space Treaty.

So, private appropriation is possible, but there are two major risks. One, you have the risk of no nation recognizing your claim and therefore you have no legal claim to the territory or its resources. Two, you risk the possible seizure of the area you wish to exploit by claim jumpers waving Article I as a defense to their intrusion. Of course you could always maintain some form of space marshal or space patrol to ward off claim jumpers, but that would be a large added expense. Given the level of risk created by the legal uncertainty, I would believe no reasonable entrepreneur would consider private appropriation.

Therefore, we are left with a body a law that gives no protections or incentives to take advantage of celestial resources.

VI NEW BODY OF LAW?

At the time the five major treaties were drafted, it could hardly have been known that in the next thirty years, several men would land on the moon, several more would orbit in space stations around the earth, man would invent a reusable space shuttle that has sent over 3000 astronauts into space, and probes would have been sent past the edges of the solar system as well as to most of the planets inside

78 Zullo, supra note 17, at 2421 (footnote omitted).


of it. While our space activities have grown exponentially, both national and international space law have not.79

Of those who consider these issues, many might believe, such as Henry Hertzfeld and Frans von der Dunk, that the time to worry about creating new laws to govern space resources is premature.80

Firms today with their sights on deep space exploration have far more serious problems than property rights issues. They cannot and will not succeed without passing normal business planning tests. There are several unforgiving aspects to space business ventures. First, the cost of access to space will remain very high—prohibitive for any type of private activity that requires frequent trips up and back. Second, the resources on the moon or asteroids have to be shown to be valuable enough to either find a way to use them on-site or to return them to earth. This has not been demonstrated as yet. Third, a significant era of research and development will have to take place before the methods of mining, using, and transporting these resources will be perfected and will pass safety and environmental regulations.81

I do not disagree with any of these points. However, new technologies, such as Space Elevators,82 are under development and may greatly reduce the cost of trips outside of the Earth’s gravity. He-3 fusion generators, although presently consuming more energy than they produce, may yet prove practical.83 Further, methods of mining He-3 have already been developed.84 These hurdles, with further research, will be easily overcome within the next thirty to fifty years and since to achieve any form of international diplomatic consensus on operating in space may take at least a decade or two, we will need to develop these new rules and regulations for operating in space soon.

79 Jayson Haile, The New Age of Conquest and Colonialism: How Admiralty Will Be Used on the Final Frontier, 29 TUL. MAR. L.J. 353, 358 (2005) (footnote omitted).

80 Henry R. Hertzfeld & Frans G. von der Dunk, Bringing Space Law into the Commercial World: Property Rights Without Sovereignty, 6 CHI. J. INT’L L. 81, 95 (2005).

81 Id. at 93. 82 Doug Gross, Can Scientists Make a Space Elevator?, CNN, Nov. 5, 2009,

http://www.cnn.com/2009/TECH/space/11/05/space.elevator/index.html; see also The Spaceward Foundation, Elevator: 2010—The Space Elevator Challenge (Dec. 6, 2009), http://www.spaceward.org/elevator2010. A space elevator could substantially decrease the cost of sending materials into orbit. In 2000, the average cost of launching commercial payloads into orbit was about $11,000 per pound ($25,000 per kilogram). Current proposals find it possible to decrease this to $1,000 per pound ($220 per kilogram). Delayed Countdown, DOMAIN-B.COM, Oct. 18, 2002, http://www.domain-b.com/ companies/companies_f/futron_corporation/20021018_countdown.html.

83 See Hedman, supra note 14. 84 Schmitt, supra note 16.


The good news is we need not start from scratch. There already exists a body of law that can be adapted, perhaps easily, to the needs of outer space. The U.N. Convention on the Law of the Sea (UNCLOS) has provisions for managing the traffic on the surface and the resources on the deep seabed.85 Space, like the sea, has vast amounts of area that is impractical for any one nation to claim.

Hugo Grotius, a pioneer of international law, preferred the term res extra commercium in referring to the open ocean. He proposed the “freedom of the seas” doctrine, whereby the ocean is insusceptible of ownership as it cannot be occupied, and no one has the “right to appropriate things which by nature may be used by everybody and are inexhaustible.”86

Being incapable of ownership and available for everyone’s use are the very same concepts expressed in Article I of the Outer Space Treaty that allow freedom of access and exploration and grant freedom of movement throughout. The Law of the Sea Treaty contains the very same concepts and almost the very same words to describe the territories of the deep seabed as are used in the Preamble and Article I of the Outer Space Treaty to describe space. UNCLOS also speaks to the resources of the sea being the common heritage of mankind, requiring “the equitable and efficient utilization of their resources.”87

[T]he area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.88

And UNCLOS further emphasizes the seabed being the common heritage of mankind by denying any attempts of sovereignty, once again very similar to the Outer Space Treaty. “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.”89

85 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

86 Haile, supra note 79, at 360–61 (footnote omitted). 87 UNCLOS, supra note 85, pmbl. 88 Id. 89 Id. pt. XI, § 2, art. 137 (referring to the deep seabed withing the control of the ISA as

“the Area”).


UNCLOS uses the concept of “common heritage” in much the same fashion as the “province of all mankind” language of the Outer Space Treaty.

This meaning of the Common Heritage Concept is also supported by Article 137 of UNCLOS, which states that “[a]ll rights in the resources of the [international deep seabed] are vested in mankind as a whole, on whose behalf the Authority shall act.” In other words, the international community owns the deep seabed, and the ISA takes it upon itself to regulate the use of the international property.90

More importantly, both of these situations concern mining for resources in places that take extensive planning and a vast investment to exploit and the Law of the Sea Convention already contains a detailed process of establishing a claim and mining for resources. As one author explained, UNCLOS “was established to handle issues including navigational rights, conservation and management of limited resources, protection of the environment, and dispute settlement measures. The international space regime must deal with these same issues.”91

UNCLOS describes, in detail, how one can obtain exclusive rights to resources on the ocean’s floor. The treaty makes the International Seabed Authority (ISA) the trustee for those resources and can grant exclusive rights to those who meet the necessary criteria: technical capability, available funding, and details on the location and amount of resources to be mined.92

The exclusive rights granted by the Authority do not last forever; right holders have a specific time frame given to mine the resources.93

90 Zell, supra note 15, at 509 (alteration in original) (footnote omitted). 91 Zullo, supra note 17, at 2442 (footnote omitted). 92 Ian Bezpalko, The Deep Seabed: Customary Law Codified, 44 NAT. RESOURCES J.

867, 887 (2004). States or other entities proposing to explore for polymetallic nodules must have the financial and technical capabilities to undertake the work. To qualify, such a state or entity must have spent “an amount equivalent to at least U.S. $30 million in research and exploration activities” and no less than ten per cent of that amount in the specific area to be explored. Registered pioneer investors are exempt from this requirement. Applications for exploration must contain sufficient data and information regarding the specific area to allow the Council to reserve the area based on its estimated commercial value.

Id. (footnotes omitted) 93 UNCLOS, supra note 85, Annex § 1, ¶ 9 (explaining that if a contractor is unable to

sufficiently explore the area within the allotted fifteen years and can demonstrate good cause for its inability, then the ISA may grant five-year exploration extensions).


Further, if the government or entity fails to exploit the resources in a timely manner, they lose those rights.94 This is similar to the logic used by the ITU in granting GEO positions, where no one nation is granted ownership, only a temporary license to use a specific space. Granting exclusive, temporary rights to physical plots on a body in outer space, as with the ITU, would not violate Article II of the Outer Space Treaty.

Presently, the ISA has 160 members with a complex governing structure.95 Most of its decision-making power is vested in its Council whose membership acknowledges certain global political and economic realities.

The executive organ of the Assembly is the Council, which consists of thirty-six members chosen by a formula that ensures inclusion of nations with developed economies and those with the most significant interests in the exploitation of the sea. In this way, all nations are able to have a voice concerning the law of the sea, but those that have actually invested in sea exploration are able to exert a strong influence.96

Just as hard choices and compromises were made by developed and developing countries alike in forming the U.N. Convention on the Law of the Sea, similar compromises will most likely be made in drafting the rules for a new outer space agreement. Whereas participation in the ISA and its Council might give certain nations a political voice concerning the resources of the deep seabed, it does not confer the economic power to exploit those resources. To this end, the original Convention endeavored to remedy this economic and technological inability in Article 153,97 which was an attempt by over 120 developing nations (called the Group of 77) to gain not only the locations of these deep-sea resources without effort but also gain the technological know-how to obtain these resources without cost.98

94 Id. Annex § 1, ¶ 13. 95 International Seabed Authority Member States, http://www.isa.org.jm/en/about/

members/states (last visited Mar. 26, 2010); International Seabed Authority About Us, http://www.isa.org/jm/en/about (last visited Mar. 26, 2010).

96 Zullo, supra note 17, at 2442 (footnote omitted). 97 UNCLOS, supra note 85, art. 153. 98 Bezpalko, supra note 92, at 871. It was not until 1974 that the Group of 77—the over 120 developing countries at the United Nations—would demand that an international authority be created to enable the Group to mine the seabed independently. To satisfy these demands, the third U.N. Conference on the Law of the Sea established an International Seabed Authority charged with mining the seabed “on behalf of mankind as a whole” and with granting contracts to those who wish to mine privately.


In this spirit, when someone wished to mine deep-sea resources, they where expected to have selected a spot with sufficient resources to support two mining operations. This second operation was to be run by the Enterprise, an entity created by the ISA.

[P]rovisions in [the 1994 revision to UNCLOS] . . . require member States to fund the Enterprise, a mining operation run by the Authority for the economic benefit of developing countries, with the expectation that mining operations by the Enterprise would ultimately make the Enterprise self-sufficient. The Enterprise would conduct its mining operations in the Area alongside the private mining operations funded by States and private businesses.99

The Enterprise would not only receive the location of the minerals, but must be given the technology to mine it by the private group. “To ensure that the Enterprise will have not just adequate financing, but also technological ability, the Convention requires the compensated transfer of mining technology from member States to the Authority for use by the Enterprise and developing Countries wishing to fund their own private mining operations.”100

Thus, the Enterprise would be given all of the advantages and none of the expenses of prospecting or developing the technology.

Article 153 and Annex III of the LOS Convention effectively cause a private company to bear the costs associated with researching the best locations and developing the latest technology. The private company then would be forced to disclose the location and technology to the Enterprise, which would compete with the private company in the harvesting and sale of the natural resource.101

The developed nations soundly rejected this idea. Consequently, those nations with the technological possibility of mining the deep seabed signed a Provisional Understanding Regarding Deep Seabed Matters. “The United States, dissatisfied with this arrangement, entered into a ‘mini-treaty’ with France, the Federal Republic of Germany, and the United Kingdom to mine the seabed. Shortly, the agreement was expanded to include eight states . . . .”102

Although the treaty had been ratified by several nations, without more of the developed world, it could hardly be considered

Id. (footnotes omitted). 99 Philip A. Burr, The International Seabed Authority, 29 SUFFOLK TRANSNAT’L L.

REV. 271, 276 (2006) (footnotes omitted). 100 Id. at 276–77. 101 Zullo, supra note 17, at 2427–28 (footnote omitted). 102 Bezpalko, supra note 92, at 871 (footnote omitted).


representative of international law. The developed nations’ “mini-treaty” contained many of the same concepts, considerations, and regulations of the UNCLOS, but without the necessity of sharing prospecting information and technology with competitors.103

Eventually a compromise was formed that, understandably, recognized certain political and economic realities by giving more power to the wealthier nations and securing the rights of private and intellectual property over redistribution. The United States and Russia were given permanent seats on the Council without being specifically named.

An amendment to Article 161 of the Convention under Section Three of the Agreement’s Annex facilitates this permanent seat without actually naming the United States as its occupant: “The Council shall consist of . . . the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product.” Russia, another industrialized State, is virtually guaranteed a seat on the Council as well, by the requirement that chamber (a) include the “State from the Eastern European region having the largest economy in that region in terms of gross domestic product.”104

A Finance Committee was created, consisting of the five largest contributors to the ISA budget, which would effectively give these nations veto power over any of the Councils decisions.105 The Committee would remain in effect until the ISA became “cost-effective.”106 And a consensus of the Committee was required to approve “any decision by the Council or Assembly with budgetary implications.”107

But most importantly, the teeth of the Enterprise were effectively removed. The changes to the treaty in Annex III of UNCLOS regarding the rules of prospecting, exploration, and exploitation completely remove any obligation to freely share information or technology with the Enterprise.

“[Annex III] removes the requirement that parties contracting with the Authority agree to make methods and technology available to the Authority. The Agreement instead provides that the Authority may

103 Provisional Understanding Regarding Deep Sea-Bed Mining, entered into force Sept. 2, 1984, art. 6, para. 1, §§ a–b, reprinted in 23 I.L.M. 677 (1984).

104 Burr, supra note 99, at 283–84 (alteration in original) (footnote omitted). 105 Zell, supra note 15, at 502. 106 Id. 107 Id.


request cooperation from contracting parties.”108 It only requires it share those willingly, perhaps at a fair market price. “The Agreement also makes clear that contractors entering into joint venture agreements with the Enterprise are under no obligation to finance any part of the Enterprise’s mining operation.”109

With these changes. UNCLOS better reflects the political and economic realities of today’s world. Although these compromises might have put most of the ISA’s power in the hands of the developed world, they have also created an agreement the whole world can live with.

CONCLUSION

UNCLOS, especially after its realpolitik redrafting, gives us an effective framework towards drafting a new Outer Space Treaty. Both treaties contain the concept of a lack of sovereignty and that resources of the deep sea and outer space are considered to be the common heritage of mankind. UNCLOS contains a detailed process by which a State or entity is granted limited access to hard-to-reach resources that can easily be adapted to the needs of outer space. The process that the drafters of UNCLOS underwent to gain global acceptance of the Convention shows us a way towards forming an internationally directed group, such as the ISA, to manage those resources that is perhaps less than entirely idealistic, but can gain the support of most, if not all, of the world’s nations.

When all is said and done, one can hardly consider an agreement that does not acknowledge the contributions of those nations at the forefront of space exploration and give them, or their corresponding corporations, every reassurance that resources garnered from space and returned to Earth can be traded freely in the world market for the benefit of all the nations of the world.

108 Burr, supra note 99, at 280 (emphasis omitted) (footnote omitted). 109 Id.

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