Session 4 The Adequacy of the Current Legal and Regulatory Framework? 203 Adequacy of the Current Legal and Regulatory Framework Relating to the Extraction and Appropriation of Natural Resources by Stephan Hobe1 I. Introduction Dreams about property rights on the Moon are as old as mankind has concrete ideas about the Moon. Of course, the very fact of a flag on the Moon has been discussed for quite some time as well as more recently claims to property rights for land on the Moon which has been sold to customers in the United States and in Europe. And it is well known that the Board of Directors of the International Institute of Space Law has reacted to these claims concerning property rights on the Moon.2 Moreover, there are many new plans about going back to the Moon and other celestial bodies and particularly about the taking of property on the celestial bodies. In the following, the attempt will be made to assess the current legal situation with regard to all kinds of property rights in outer space and on celestial bodies. My specific task thereby is to assess the situation mainly with regard to the legal regime of the Outer Space Treaty of 1967 and not going beyond this Treaty. I will do so with one exception. I will need to include some of the notions of the International Moon Agreement if I come to evaluate certain conceptions of the Outer Space Treaty. Because one thing is sure: the Moon Agreement belongs to the subsequent state practice that is important as a means of interpretation under Art. 31 para. 3 of the Vienna Convention on the Law of Treaties. That brings me to another important preliminary remark: The situation under the legal regime of the Outer Space Treaty is rather complicated. This may have a lot to do with the fact that when this Treaty was drafted almost 40 years ago, one did not think of concrete uses – all the more by private users –, although, as I have mentioned, some usage regime was always in the minds of the people. I shall therefore analyse the legal regime under the Outer Space Treaty by asking the question whether and to what extent that kind of uses are allowed and where the concrete limits to these uses are. It is thus 1 Director, Institute of Air and Space Law, University of Cologne. 2 Statement by the Board of Directors of the International Institute of Space Law (IISL) on Claims to Property Rights Regarding the Moon and Other Celestial Bodies, http://www.iafastro- iisl.com/ additional%20pages/Statement_Moon.htm (date of access: 14.06.2006). 204 hoped that this legal assessment will come to rather concrete results that may help the legal community to make a step forward in terms of clarification of the outer space legal regime in general and in particular the Magna Charta of outer space. And I am of course – as I should mention – extremely pleased to make this presentation in the honour of Mrs. Eilene Galloway, the grand dame of the law of outer space, Honorary Director of the International Institute of Space Law and just an institution in space law who follows the long tradition of space lawyers with a very significant age. II. The Legal Regime of the Outer Space Treaty with Regard to Property Rights in Outer Space and on the Moon and Other Celestial Bodies 1. The Freedom of Exploration and Use (Art. I para. 2 OST) First of all, the Outer Space Treaty (OST) in Art. I para. 2 allows all those who are covered by this provision the free exploration and use of outer space and the celestial bodies. Thereby, explicitly states are named and no qualification with regard to “use” is made. In the following, I first want to discuss what can be meant by “use” and then we will ask the question on whether solely states as particularly mentioned in Art. I para. 2 of the Outer Space Treaty or also private actors are entitled to use outer space. Art. I para. 2 of the Outer Space Treaty specifically refers to the exploration and use of outer space which is free for all states. Exploration thereby means the scientific exploring of different sites or other exploratory activity. Moreover, use means the practical application of the Moon and its resources. In this respect, it is questionable whether also the commercial uses of outer space and the celestial bodies can be covered by Art. I para. 2 of the Outer Space Treaty. Even if commercial use is not covered by this regulation, such non-regulation would be equivalent to the permissibility of such activities within the limits of the Outer Space Treaty (Art. II and Art. I para. 1 OST).3 From the very wording, however, “use” of outer space might also mean the taking of property as a kind of commercial use. It could also encompass the extraction of natural resources, for example stones from the Moon or dust. It is therefore enlightening that, rather than in the part where the permission to certain usages is given in Art. I para. 2 of the Outer Space Treaty, the limitation for this activity is contained in other provisions of the Treaty that will be analysed subsequently. Considering the wording of the provision, use of outer space can encompass the commercial uses, the extraction of resources by states 3 Cf. K.-H. Böckstiegel, Die kommerzielle Nutzung des Weltraums, in: K.-H. Böckstiegel (ed.), Handbuch des Weltraumrechts, 1991, p. 279. 205 that are explicitly mentioned in Art. I para. 2, and arguably also according to Art. VI OST by private actors. Thus, in sum, states and other actors are allowed to use outer space and celestial bodies commercially, inter alia by the extraction of resources.4 2. Limitations by Art. II OST Rather than directly in the provision of the freedoms we find that other provisions set the frame for the use of outer space. This is on the one hand Art. II OST, prohibiting national appropriation, as well as in certain respects Art. I para. 1 OST, asking for any use to be carried out for the benefit and in the interest of all mankind. 2.1. “National Appropriation” First of all, Art. II of the Outer Space Treaty mentions that “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”. This is at least an unusual wording. In order to get a concise understanding we start with the wording of “national appropriation”. This is indeed not a traditional term because neither the Antarctic Treaty of 1959 which somewhat served as an example for the Outer Space Treaty, nor the Law of the Sea Convention of 1982 use the term “national appropriation”. One can certainly say that at a first glance it is not clear what is meant by “national appropriation”. Therefore, an interpretation of this wording according to Art. 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) is required. a) Ordinary Meaning According to Art. 31 VCLT one would start with the literal interpretation of the ordinary meaning of “national appropriation”. This is characterised by a mysterious mix of a rather private law conception like “appropriation” and a public law conception like “national”. Therefore, the second half of the provision may be of explanatory nature regarding the term of national appropriation. Art. II OST further specifies this national appropriation as encompassing “claims of sovereignty, means of use or occupation, or any other means”. That is very clearly a prohibition of any taking of land by claims of sovereignty. This is the traditional means reiterated by “occupation”, the other title of public international law. Therefore, Art. II prohibits – and this is rather uncontested – any establishment of titles of states with regard to the area of outer space and the celestial bodies, be it by claims of sovereignty or by occupation.5 4 S. Hobe, Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums, 1992, p. 66. 5 K. U. Pritzsche, Natürliche Ressourcen im Weltraum – das Recht ihrer wirtschaftlichen 206 The “other means” could then arguably be the establishment of private titles through the means of “use” or “any other means”. From the very wording it therefore seems to be at least possible that Art. II OST shall cover as broad as possible public law titles with regard to the area of outer space and particularly of the celestial bodies as well as private law titles. But this remains unclear seen from a perspective of the vague wording of Art. II OST. Therefore, other means of interpretation have to be employed. b) Circumstances of the Conclusion of the Treaty and Travaux Préparatoires It is interesting to note that the US and the Soviet proposals6 for the Outer Space Treaty were restricted to the national claims of sovereignty. But these proposals, limited to public law titles, were not immediately accepted. The British representative also put forward draft legislation that made specific the principle that sovereignty could not be acquired.7 However, this rather narrow wording was not accepted either, which could indicate that the drafters wanted more than just the prohibition of public law titles. Moreover, the Austrian delegate pointed to the fact that the text should regulate not only the exploration of the Moon and other celestial bodies, but also the “use” so that any contradiction between the term “non-appropriation” and “use” could be prevented.8 Also, according to the Belgian representative, no one had denied during the negotiations that the term “appropriation” covered both the establishment of sovereignty and the creation of titles to property and private law.9 This view was shared by the French representative.10 On the other hand, the Russian delegate warned that it would be unwise to look too far ahead and establish rules for future situations that could not clearly be foreseen.11 Thus, in sum, the negotiating history is ambiguous.12 It was clear that the drafters wanted to exclude any title to state appropriation through sovereignty or occupation. But it was unclear whether something more concerning titles in private law should also be prohibited. Nutzung, 1989, p. 74; F. G. von der Dunk/E. Back-Impallomeni/S. Hobe/R. M. Ramirez de Arellano, Surreal estate: addressing the issue of ‘Immovable Property Rights on the Moon’, Space Policy 20 (2004) 149 et seq. (at p. 152). 6 Soviet proposal UN doc. A/AC.105/C.2/E.1, 6 June 1962; UN doc. A/AC.105/C.2/L.6, 16 April 1963. 7 UN doc. A/AC.105/C.2/L.6, 16 April 1963. 8 Austrian Delegation, UN doc. A/AC.105/C.2/SR 58. 9 UN doc. A/AC.105/C.2/SR 71, 4 August 1966. 10 UN doc. A/C.1/PV.1492, 16 December 1966. 11 UN doc. A/AC.105/C.2/SR 58. 12 For an account of the negotiating history of Art. II OST see C. Q. Christol, Article 2 of the Principles Treaty Revisited, AASL Vol. IX (1984) 217 et seq., and E. Brooks, Control and Use of Planetary Resources, Proc. 11th IISL Coll. 1969, pp. 339 et seq. 207 The very fact that some representatives during the negotiations remarked that one should not anticipate too much of the future development on the one hand, and, on the other hand, that any prohibition of the freedoms to act should be spelled out clearly, so far in my opinion only allows the conclusion that the negotiating history may underline the fact that any private title to property equivalent to national appropriation by means of sovereignty or use should be prohibited. Only such interpretation would adequately take account of the wording of this provision. It must be observed whether such interpretation can be upheld with regard to the context of this provision as a means of interpretation in the sense of Art. 31 para. 2 of the VCLT. c) Context Any interpretation of Art. II OST should consider this provision in the context of the freedoms as enshrined in Art. I para. 2 of the Treaty and other possible limitations that could arguably be derived from Art. I para. 1 of the Outer Space Treaty. According to Art. I para. 1 OST, any exploration and use of outer space shall be carried out “for the benefit and in the interest of all countries”. Art. I para. 1 of the Outer Space Treaty as the initial provision of this Treaty has an overriding leitmotiv effect. It makes clear that outer space and the celestial bodies are there for the common use by all states and not by specific countries.13 Any claim of sovereignty or of occupation by one state would mean a use of this land exclusively for the benefit of this state and thus would be contrary to the common benefit clause. Therefore, the function of Art. II OST becomes clear in the context with other provisions: Whereas Art. I para. 1 OST looks for a qualitative apportionment of uses of outer space such as to allow any state the possible use and a possible benefit from such use by other states, Art. II shall back this possibility by the mere fact of prohibiting that any title to property renders a common use or a common benefit of the use virtually impossible. d) Object and Purpose From the previous considerations follows also the clear object and purpose of Art. II OST as a final means of treaty interpretation. This provision shall prevent any exclusive claim to outer space or to celestial bodies in order to allow the use of such areas as res communes.14 Such are areas available for inclusive uses rather than exclusive uses.15 This overriding importance of Art. II OST is fulfilled if one can interpret all the various means as possible means for the acquisition of titles 13 N. Jasentulyana, Article I of the Outer Space Treaty Revisited, 17 J. Sp. L (1989) 129. 14 C. Q. Christol, Article 2 of the Principles Treaty Revisited, AASL Vol. IX (1984) 217. 15 C. Q. Christol, Article 2 of the Principles Treaty Revisited, AASL Vol. IX (1984) 217. 208 to territory. Any opposing view in the literature, e.g. by Brooks, who wants to include the taking of resources in the prohibition as well,16 is not convincing. It has no support in the text of Art. II OST that refers only to the territorial right. Thus it is more or less a matter of Art. I para. 1 OST to limit possible uses in order to qualitatively allow all states to benefit therefrom.17 e) Subsequent State Practice As already mentioned it is also of relevance, particularly in view of the fact that the Outer Space Treaty will turn 40 years in a few months, what states have officially been doing meanwhile. Here, on the one hand, we have the very interesting negotiating history and the final wording of the Moon Agreement of 1979, 12 years after the adoption of the Outer Space Treaty.18 Moreover there is the United Nations Convention on the Law of the Sea of 1982, declaring the area of the deep seabed and its resources the common heritage of mankind, and finally the Space Benefits Declaration of the United Nations General Assembly of 1996. One must again highlight the importance of these three developments as means of interpretation in the form of the subsequent state practice according to Art. 31 para. 3 of the Vienna Convention on the Law of Treaties. Reference is made to these agreements because, apart from the uncontested commercial uses of outer space (e.g. by satellites), no specific state practice of such commercial uses with regard to celestial bodies does exist by now. aa) Art. 11 para. 3 of the Moon Agreement Art. 11 para. 3 of the Moon Agreement certainly belongs to the most dubious provisions of the entire space legislation. Nevertheless, our task is limited to only attempting an interpretation of the respective Outer Space Treaty in the light of a subsequent state practice as made evident in the Moon Agreement. One can state that Art. 11 para. 2 of the Moon Agreement equals Art. II of the Outer Space Treaty in that once more in a territorial perspective the national appropriation by any claims of sovereignty, by means of use or occupation, or by any other means is prohibited. It is again indicative of the territorial nature of such claims if one compares this provision with the other paragraphs of Art. 11 of the Moon Agreement. In its para. 3 the Moon Agreement makes it clear that neither the surface nor the subsurface of the Moon “nor any part thereof or natural resources in place shall become property of any state or intergovernmental or non- governmental organisation or natural person”. Again, the Moon Agreement highlights that these areas and their natural resources – before being removed – cannot be made public or private property by the claim of titles. Insofar, it 16 E. Brooks, Control and Use of Planetary Resources, Proc. 11th IISL Coll. 1969, pp. 341, 342. 17 S. Hobe, Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums, 1992, p. 83. 18 See for a recent analysis R. Jakhu, Twenty Years of the Moon Agreement. Space Law Challenges for Returning to the Moon, ZLW 2005, p. 243. 209 reflects what Art. 11 para. 2 of the Moon Agreement as well as Art. II of the Outer Space Treaty did mention. Already the very wording indicates the different treatment of natural resources “in place” that are still part of the area and such resources being removed from the area which as a consequence can become subject to public or private titles to property. These provisions also suffice to argue that any removal of resources from the Moon or other celestial bodies may make them subject to the usage regime, the structure of which is indicated in Art. 11 para. 7 of the Moon Agreement. If still in 1979 the Moon Agreement called for the establishment of an international regime in terms of the exploitation of natural resources, this is clearly indicative of the fact that at that time, state parties were convinced that at least no such prohibition was already incorporated in the 1967 Outer Space Treaty. Rather the details should only be negotiated against the background of the basic structure as enshrined in Art. 11 para. 7 of the Moon Agreement at later times. One also thinks of the discussion in 1979 on the establishment of a possible moratorium on the use of resources until the implementation of the international regime was set up.19 Around a decade after the conclusion of the Outer Space Treaty, the question of a possible moratorium was thus discussed. This is clearly a further indication of the fact that no such moratorium or any equivalent consequence was previously considered to be incorporated in the Outer Space Treaty. bb) Articles 136 and 137 of the LOS Convention Furthermore, it is necessary to make one more systematic remark with regard to the parallel concept of common heritage of mankind as enclosed in Articles 136 and 137 of the United Nations Convention on the Law of the Sea of 1982. The Convention distinguishes between resources in the deep seabed, the area (in situ), and removed resources as the so called minerals (Art. 133 LOSC). Art. 137 para. 2 LOSC declares resources not being subject to alienation and minerals only in accordance with Part XI of the LOSC. Here again, the dichotomy of a prohibition of any foundation of territorial title to the “area” (of the deep seabed) and a detailed provision on the exploitation mechanisms of such resources was typical for the conception of the Law of the Sea Convention.20 cc) Space Benefits Declaration of the UNGA 19 T. Gangale, The Moon Agreement Revisited, September 2006, http://pweb.jps.net/~gangale/ opsa/spaceEx/MoonAgreementRevisited.htm (date of access: 14.06.2006). 20 A. Kerrest, Exploitation of the Resources of the High Sea and Antarctica: Lessons for the Moon?, Proc. 47th IISL Coll. 2004, p. 530. See also for an overall account of today’s importance of the concept of the common heritage of mankind S. Hobe, Was bleibt vom gemeinsamen Erbe der Menschheit?, in: K. Dicke et al. (eds.), Weltinnenrecht, Liber Amicorum Jost Delbrück, 2005, p. 329. 210 Finally, one should take into account the Space Benefits Declaration of the United Nations General Assembly of 1996.21 This is insofar of extremely high importance since after many years as an agenda item of the United Nations Legal Subcommittee, this Declaration can be regarded more or less as an authoritative interpretation of Art. I para. 1 of the Outer Space Treaty.22 The Declaration elaborates on Art. I para. 1 of the Outer Space Treaty, but makes no statement whatsoever as to the question of a possible prohibition of the appropriation of natural resources. Thus, as a result, one can clearly see that Art. II of the Outer Space Treaty explicitly and implicitly prohibits only the acquisition of territorial property rights, be they founded in public law (national appropriation) or in private law (by means of use or any other means). Both acquisitions of such titles are considered as being against the very spirit of the Outer Space Treaty, which is to immediately hinder the use of outer space and other celestial bodies by all states irrespective of their degree of scientific and economic development. No mentioning is made to the question of the extraction of natural resources which means that such use is allowed under the Outer Space Treaty. The only question in this respect remains the division of the benefits derived from those resources which is regulated by Art. I para. 1 of the Outer Space Treaty. And here the Space Benefits Declaration authoritatively grants freedom to states to determine the specific aspects of international cooperation in order to pursue this aim. 2.2. In How Far is Private Appropriation Prohibited by Art. II OST? Already from the very wording of Art. II OST, it had become clear that certain means equivalent to the acquisition of sovereignty are considered to be private means of the acquisition of territorial titles. This view is supported by Art. VI of the Outer Space Treaty according to which activities can also be carried out by non-governmental entities that must be continuously supervised and authorised by the state party. As regards property rights, this becomes clear because any acquisition of property rights derives its authority by a state act that, for example, establishes a register for property rights with regard to territory. Thus, Art. VI of the OST explicitly includes non-governmental entities. On the other hand, more recently an attempt to a reinterpretation has been made because the Chinese text of Art. II OST – being equally authentic according to Art. XVII OST as well as according to Art. 33 of the Vienna Convention of the Law of Treaties – differs 21 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, UNGA res. 51/122 of 13 December 1996. 22 On the declaration see M. Benkö/K.-U. Schrogl, The 1996 UN-Declaration on “Space Benefits” Ending the North-South Debate on Space Cooperation, Proc. 39th IISL Coll. 1996, p. 183.; for an account see also S. Hobe, Was bleibt vom gemeinsamen Erbe der Menschheit, in: Liber Amicorum Jost Delbrück, 2005, p. 338 et seq. 211 from the English, French, Russian, and Spanish versions in that it provides that outer space, including the Moon and other celestial bodies, cannot be appropriated “through the state by asserting sovereignty, use, occupation or any other means”.23 In other words, it is asserted that because the Chinese text would prohibit only the appropriation by the state and not by private entities, the term “national appropriation” would only mean appropriation by or for the state itself. This arguably would allow the acquisition of private titles to territory on celestial bodies. It has already been mentioned that the acquisition of private property requires a state regulatory framework that governs these activities. Moreover, at the time of the conclusion of the Outer Space Treaty, private parties involved in space activities were deemed to be subsumed entirely under the relevant state’s international responsibility. Any prohibition of public appropriation would therefore include the prohibition of private appropriation. Thus, the absence of any reference to private appropriation in Art. II was just one manifestation of the absence of references to private parties, not an exception to the general rule.24 And in general, one must highlight that if the system of reference for the acquisition of private titles is missing through the prohibition addressed to states, then any permission of private territorial titles makes no sense or is, in other words, irrelevant. Thus, in the interpretation given states as well as individuals cannot acquire territorial titles to property. 3. Limitation of Uses by Art. I para. 1 OST Considering further limitations of the freedom of use of outer space and the celestial bodies by Art. I para. 1 of the Outer Space Treaty, most of the difficulties arise because the wording is rather vague. As we have seen concerning the taking of resources, Art. I para. 1 of the Outer Space Treaty can be the only possible source for a reallocation of benefits derived from the commercial exploitation that is so far permitted. Art. II OST itself does prohibit only the acquisition of territorial titles. One can just highlight in rather broad terms that Art. I para. 1 OST prohibits any use of outer space that makes it impossible to regard outer space as the common province of all mankind. Again, looking at the common heritage conception as enshrined in Art. 11 of the Moon Agreement, one can see that the eventual sharing of resources or of the benefits derived from those resources is an aim of the establishment of a legal regime for the 23 R.J. Lee/F.K. Eylward, Art. II of the Outer Space Treaty and Human Presence on Celestial Bodies: Prohibition of State Sovereignty, Exclusive Property Rights, or Both?, IAC-05-E6.2.02, p.2; on the question of property in Moon samples, see C.W. Jenks, Property in Moon Samples, in: Proceedings IISL Colloquium 1969, p. 148. 24 F. G. von der Dunk/E. Back-Impallomeni/S. Hobe/R. M. Ramirez de Arellano, Surreal estate: addressing the issue of ‘Immovable Property Rights on the Moon’, Space Policy 20 (2004) 149 et seq. (153); L. I. Tennen, Commentary on Emerging System of Property Rights in Outer Space, United Nations/Republic of Korea Workshop on Space Law, 2004, pp. 67 et seq. (p. 68). 212