Property Rights on the Moon
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This article is penned by Shubhangi Upmanya, a first-year student who is pursuing BBA.LLB. from Vivekananda Institute of professional studies, Indraprastha University. In this article, she has discussed the rules governing the activities related to the exploration of outer space and property rights on the Moon and other celestial bodies.

Introduction

Space is an area that is not divided into parts for each country and has no boundaries. It is limitless. But have you ever wondered, to whom the moon, the stars, and the other celestial bodies belong to, who has the property rights conferred upon him/her and, what are the rules governing the exploration of space? Well, in this article we will discuss how the space laws govern the exploration of space and who is allowed to govern it. 

Soon after the Soviet Union launched Sputnik in 1957, the United Nation framed the United Nations Committee on the Peaceful Uses of Outer Space. Let us discuss UNCOPUOS in-depth.

United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS)

The General Assembly in the year 1959 set up the United Nations Committee on the Peaceful Uses of the Outer Space. It was formed for the regulations of the exploration of space. It makes it mandatory that the usage of the space should be done in a peaceful manner for the peace, security, and development. It was also set up to govern international co-operation with regards to peaceful usage of space. This committee studies all the activities related to space that could be performed by the United Nation and the legal issues and matters that would come on the way during the space utilization. 

This committee concluded 5 treaties and created 5 principles. Every year during the sitting of this Committee, it discusses the handling of space-related activities to assure that the development goal is met globally. Now, we would agree that with the technologies evolving and advancing, space is also witnessing new challenges. Therefore, this Committee decides upon all the development programs and agendas.

In 1961, the Committee set up its two subsidiaries, Scientific and Technical Sub-committee and the Legal Sub-committee. This Committee meets at Vienna, Austria, every year, to discuss the future activities that would be undertaken. The following matters are a concern for the Committee and are governed by it:

  • Maintenance of outer space for peaceful purposes, 
  • Operations conducted in the space to be safely carried out, 
  • Space debris,
  • Weather in the space, 
  • Threat from asteroids in space, 
  • The use of nuclear power in outer space for peaceful purposes, 
  • Climate change, 
  • Water management,
  • Global navigation satellite.

We will now analyze its two sub-committees, Scientific and Technical Sub-committee and Legal Sub-committee:

Scientific and Technical Sub-committee 

The Scientific and Technical sub-committee meets for two weeks, annually. It analyzes the Scientific and Technical aspects of the activities related to space exploration. This committee discusses the following topics:

  • Space weather, 
  • Objects near the Earth,
  • Usage of space technology for socio-economic development,
  • Disaster management,
  • Global navigation satellite systems, 
  • Sustainability of outer space activities for the long-term.

Legal sub-committee

It also meets for two weeks, every year. Unlike the Scientific and Technical sub-committee, it discusses the legal matters and issues arising out of space exploration and related activities.. It analyzes legal questions asked by the various countries and discusses them further.

Topics include:

  • The status and application of the five United Nations treaties on outer space,
  • Defining and creating limits of outer space, 
  • Legislating the matters of space,
  • Legal mechanisms relating to space debris mitigation, 
  • International mechanisms for cooperation in the peaceful exploration and use of outer space.

Bureau of the Committee 

There is also a Bureau of the Committee.

It consists of five offices, which are:

  • 1st Vice-Chair
  • 2nd Vice-Chair
  • Rapporteur of the Committee
  • Chair of the Scientific and Technical Subcommittee
  • Chair of the Legal Subcommittee

At a time, all of these offices are held for a period of two years. It rotates among the five regional offices, which includes, African Group, Asia-Pacific States, Eastern European States, Latin American and Caribbean States, and Western European and other States. It makes certain that the committee and the sub-committees discharge their functions properly and all the sessions are successful in their operation.

Treaties concluded by UNCOPUOS

The 5 treaties which were concluded by the United Nations Committee on the Peaceful Uses of Outer Space are:

  1. Outer space treaty 
  2. The Moon Treaty
  3. Rescue Treaty
  4. Liability Treaty
  5. Registration Treaty

Through these Treaties, UNCOPUOS upheld that the moon and other celestial bodies belong to all the countries and the space is open for exploration and usage by every country in the world, provided that it is for peaceful usage.

Let us quickly have a look at them.

Outer space treaty

Outer Space Treaty is a very famous treaty that provides for the framework for the exploration of the space in a way that does not harm the space environment or cause any kind of damage. It should be peaceful in all aspects.

The Moon Treaty

The Moon Treaty is a multilateral treaty which talks about the activities carried out on the Moon and other celestial bodies. Basically, it has jurisdiction regarding the Moon and other celestial bodies, over every participant nations.

Rescue Treaty

In the Rescue Treaty of 1968, it provides that in case an astronaut in space is in danger or is suffering, then the States will take all the possible actions to rescue that astronaut and bring him back to the launching site. It also includes bringing back space objects. The states can further provide assistance to the state from where the space object was launched.

By January 2019, ninety-eight states have ratified the Rescue Agreement of 1968. In its early stages, it was considered and negotiated by the Legal sub-committee of the UNCOPUOS. 

Liability Convention

Liability Convention, also known as the Convention on International Liability for Damage Caused by Space Objects, talks about the rules related to liability. By 2019, ninety-six states have signed and ratified it whereas 19 states have signed but have not ratified it as of now. Talking about the four international intergovernmental organizations that are, the European Space Agency, the European Organisation for the Exploitation of Meteorological Satellites, the Intersputnik International Organization of Space Communications, and the European Telecommunications Satellite Organization, they have accepted their rights and have obligated themselves to follow the rules provided in it.

This Treaty generally provides that if one state has launched any space object and the same cause any damage thereto, the state will be completely liable for the damage caused. To give you an illustration, “State Y” launched a space object which caused some sort of damage, for instance, adds to the debris in the space, then “State Y” will only be held liable for it.

Registration Treaty

Registration Convention, also known as The Convention on Registration of Objects Launched into Outer Space, obligates the States to provide for the orbit of each space object. A registry to provide for the information related to launching is already being maintained by the United Nations as a result of the General Assembly Resolution of 1962.

By the end of 2018, 69 states had already signed and ratified it.

We will now discuss one of the most famous treaties, the Outer Space Treaty.

The Outer Space Treaty

We will discuss the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies which is contained in Part A of this Treaty.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies- Part A

Article 1

The exploration of space will be the territory of all the states, irrespective of the socio-economic conditions or the scientific and technical development of the nations.

The exploration of the uses of outer space will be done for the benefit and development of every state.

The participant states are free to conduct a scientific investigation in matters related to outer space, including the Moon and other celestial bodies.in this case, all the participant states should facilitate and encourage international cooperation and avoid hindrance in such investigation.

We will discuss Article 2 while discussing property rights on the Moon, so, for now, we will be discussing Article 3.

Article 3

All the participant states, carrying out activities on the moon and other celestial objects with regards to the exploration of space, will do it in accordance with the international laws and also, in accordance with the United Nations Charter. 

This will make sure, such activities maintain peace and security of all the states and promote international cooperation and peace among all the participant states.

Article 4 

This Article instructs the States to not place any space object in the orbit of space that carries any nuclear weapon or a weapon that can lead to mass destruction. It also prohibits the state from installing such weapons on celestial bodies or station nuclear weapons on space in any other manner.

It further provides that the Moon and other celestial bodies are reserved for peaceful exploration, exclusively by all the states. So, the establishment of any military base and installations and fortifications, the testing of any kind of weapons and the conduct of military maneuvers on celestial bodies are forbidden completely.

Anyways, the use of military personnel for any scientific or technical research or for any other peaceful purposes is not prohibited under this Article. Also, the use of such equipment or facility for the exploration of the Moon and other celestial bodies is not forbidden.

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Article 5 

All the nations who are a part of this Treaty will consider astronauts as diplomat of mankind and will provide all the necessary and needed assistance which could be provided, under the circumstances when their life is in danger, such as when there is an accident, condition of distress or when the spacecraft had to follow an emergency landing on the State of another territory or on the high seas. 

In such cases, the astronaut will be brought back with all safety measures. This Article also instructs the astronauts to provide each and every assistance possible to the astronauts of other states in carrying out space activities.

The astronauts on discovering any activities or phenomena on the outer space(including the Moon and other celestial bodies) of such a nature that can cause danger to their health and life, shall immediately inform of it either to the Secretary-General of the United Nation or to the other members or participants to the Treaty.

Article 6

All the participant states shall have international responsibility for all the national activities carried out in outer space, including the Moon and other celestial bodies. The carrying out of these activities by government entities or a non-governmental agency does not matter.

The states should make sure that these activities satisfy the provisions laid down in the present Treaty. 

It would be required on the part of the concerned participant state to supervise and authorize all the activities of the non-governmental agency. 

If activities are carried on by some international organization, the responsibility to govern and authorize shall lie to both the International organization and the state party to such a treaty related to the International organization.

Article 7 

A state party who is a participant nation in the treaty launches or acquire the launching of the space object into outer space, including the Moon and other celestial bodies or the state party from whose territory the launch is made, will be internationally liable for all damages incurred by the other state party to the treaty.

The damage covers every damage caused by the object as a whole or any of its parts to the earth, air space or to outer space itself.

Article 8

The jurisdiction over the space object and the personnel therein will be of the state from whose territory the space object was launched until the space object is in outer space.

The ownership of the objects landed on the space or constructed on the celestial body or any part of the space object, is not affected by their presence on the space or on the celestial body or their return to earth.

If such objects are found beyond the territorial limits of the particular state to which it belongs, it will be returned to that state provided that the owner state gives some identification data relating to the space object.

Article 9 

The exploration of space, including the Moon and other celestial bodies should be carried out on the principles of mutual cooperation and assistance. Every state shall take care of the interests of the other participant states and would give due respect to each other.

The Participants states will conduct studies of the space activities and conduct such activities which will help avoid the harmful contamination and also to avoid the inducing of such adverse changes in the environment of the Earth which will introduce extraterrestrial matter.

In such a case if necessary, the states should adopt appropriate measures for this purpose.

Let us look at some situations.

  • In case, the state party to the Treaty has reason to believe that an activity or experiment that is taken up by itself or its nationals and can cause damage to any other states party to the Treaty, it should undertake appropriate international consultations before it proceeds with such activity on the space including the Moon and other celestial bodies.
  • In case, the state has a reason to believe that a space activity or experiment planned by some other state who is a party to the treat, can in future cause damage or can prove to be a danger, can request a consultation regarding such activity or experiment.

Article 10 

The member state should consider any requests by other States Parties to be afforded an opportunity to observe the flight of space objects launched by those States This order is necessary to ensure the activities related to the exploration of outer space, including the Moon and other celestial bodies, are carried out in a manner which ensures equality and co-operation among all the member states.

The nature of such activities to be carried out and the conditions under which it can be afforded will be decided by an agreement between the participant states.

Article 11 

To promote international cooperation among the state party to the treaty, for the exploration of outer space, including the Moon and other celestial bodies, the state parties should agree to inform the Secretary-General of the United Nation as well as the public and the international scientific community. The information should contain the nature, conduct, locations and the result of the activities undertaken, to an extent that is feasible and practicable.

Article 12 

All stations, installations, equipment and space vehicles on the Moon and other celestial bodies can be accessed by all the representatives of other States Parties to the Treaty. This could be done on the basis of reciprocity.

All of these representatives will give prior notice of a projected visit which should be reasonable enough. This would be done in order to ensure that appropriate consultations are held and to let maximum precautions be taken to assure safety, also, to avoid interference with normal operations conducted in the facility to be visited. 

Article 13 

The provisions of this Treaty shall apply to every activity of States Parties to the Treaty in the exploration and use of outer space, including the Moon and other celestial bodies. 

It is irrespective of such activities carried on by a single State Party to the Treaty or jointly with other States. It involves cases where such activities are carried out within the superintendence of international intergovernmental organizations.

The States Parties to the Treaty will resolve any relevant questions that arise in regards to the activities carried on by international intergovernmental organizations towards the exploration and use of outer space, including the Moon and other celestial bodies.

It has to be done with either the appropriate international organization or with one or more States members of that international organization, which are parties to this Treaty.

Article 14 

  • This Treaty should be signed by all states without any discrimination. In case, any state has not signed this Treaty before it came into force then according to paragraph 3 of this article, the state can agree to it at any time after. 
  • This Treaty shall be subject to ratification by the signatory states. Instruments of ratification and instruments of accession will be preserved by the Governments of the following countries:
  1. Union of Soviet Socialist Republics,
  2. The United Kingdom of Great Britain,
  3. Northern Ireland,
  4. The United States of America. 

These are designated as the Depositary Governments.

  • This Treaty will enter into force when the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Treaty, is complete. 
  • For States whose instruments of ratification or accession are deposited after this Treaty has come into force, so, it will be included on the date of the deposit their instruments of ratification or accession. 
  •  The date of each signature, the date of deposit of each instrument of ratification of and accession to this Treaty, the date of its entry into force and other notices should be informed without any delay to all signatory and acceding States by the Depositary Governments.
  • This Treaty shall be registered by the Depositary Governments subsequent to Article 102 of the Charter of the United Nations.

Article 15

Any participant state of the Treaty can give proposals to bring certain amendments to this Treaty. Amendments will be done only after the proposal is accepted by a majority of the States which are party to the Treaty. 

These amendments will come into force for the member state, who proposed it just after it is accepted by the majority and for the rest of the member states on the date they accept it.

Article 16 

Any participant state to the Treaty can withdraw by giving notice to the Depositary Governments regarding its withdrawal from the Treaty. 

This could only be done one year after its entry into force whereas such withdrawal shall take effect one year from the date of receipt of this notification.

Article 17

This Treaty shall be deposited in the archives of the Depositary Governments. It may contain texts in Chinese, English, French, Russian and Spanish. 

Also, certified copies of this Treaty which are duly signed will be transmitted by the Depositary Governments to the Governments of the signatory and acceding States. 

Who owns the Moon?

Well, hasn’t this question ever bothered you? The fact is that many persons and organizations have claimed Moon to be owned by them. We will be learning about those claims but firstly, we will look at what the Outer Space Treaty and the Moon Treaty have a say in this matter.

Article 1 of the Outer Space Treaty says that outer space including the Moon and other celestial bodies is free for access by all states of the Treaty the activities related to the exploration of space. It means that it will be available without any discrimination to all the participant states and no particular state will have its right over the Moon and the other celestial bodies.

It will work on the principles of equality and with respect to international law.

Now let us look at Article 2 of the Outer Space Treaty, which says that the 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.

It clearly states that no country can claim such property rights on the Moon. Therefore, the Outer Space Treaty upheld the concept of res communalis (common heritage of the man)

Some significant claims on the Moon and other celestial bodies

  • Dennis Hope- he is an American entrepreneur. He is said to sell extraterrestrial real estate. Now, what is extraterrestrial real estate? It is the claim to own on planets other than Earth or natural satellites or any other part of the space. It could be made by any organizations, individuals, and scam artists. Such claims are not recognized by any authority and have no legal standing.

Now apparently, in 1980, he established his own business name, the Lunar Embassy Commission. Lunar Embassy is not recognized by any authority but Denis Hope has claimed to have sold 2.5M 1-acre of land on the Moon, for around US$20 per acre. 

He keeps the map of the Moon in front of him and points out to the plot to be sold while his eyes closed. This is how he allocates the land to be sold. He claims that two former US presidents Jimmy Carter and Ronald Reagan were his customers.

  • Adam Ismail, Mustafa Khalil, and Abdullah al-Umari: In the year 1997, these three men belonging to Yemen, sued NASA for invading Mars. They claim that they inherited Mars from their ancestors before Mohammed. Their argument was based on the mythologies of the Himyaritic and Sabaean civilizations that were in existence before several thousand years B.C.
  • Gregory W. Nemitz- Do you remember “Asteroid 433 Eros”, on which “NEAR Shoemaker” landed in the year 2001. Well, he claimed the ownership of Asteroid 433 Eros and named his company “Orbital Development”. Further, his company, issued NASA an invoice of $20 for parking the spacecraft at the asteroid.

But, NASA, ultimately declined to pay, citing the lack of legal standing of the claim.

Commercial Space Launch Competitiveness Act of 2015

This Act is also known as the SPACE Act of 2015 or Spurring Private Aerospace Competitiveness and Entrepreneurship, was passed by the House of Representatives in May 2015. The Bill was passed unanimously by the Senate, however, few amendments were made, which was further than assented by Barack Obama, US President.

This Act provides an update for the government of the United States for the use of space for commercial purposes.

This United States law allows its citizens to commercially explore the space and exploit its resources such as water and minerals. It does not, however, cover the extraterrestrial life.

It forbids the United States to declare any sovereign right on any celestial body.

But arguments prevail, contending that the use of the resources of the space is an act of declaring sovereignty. And that it is violative of the Outer Space Treaty.

If we look at the Space Act 2015, it was a great achievement for private companies.

One of such companies is the Moon Express, it has plans to mine the surface of the Moon.

It is just not limited to the Moon Express but indeed, there are many private companies making some objectives to mine water on the surface of the Moon. even NASA has two plans for doing the same.

Let us look at some features of the Act:

  • It encourages private sector companies to involve in the activities related to the exploration of outer space and using their resources.
  • It also provides for the learning period which allows fledgling spaceflight companies to carry out their operations without much government oversight.
  • It gives private companies the right to exploit resources from asteroids like platinum, minerals, and water.

Conclusion

The arbitrariness in the Outer Space Treaty provides mixed views about the rights concerning the mining. It is still a matter of debate that Outer Space Treaty though provides for not claiming sovereign rights on the celestial bodies but does not speak about asserting rights on the resources which are obtained through mining. If we look at the Space Act 2015, it does allow the US citizens to exploit the resources. 

Debates regarding economic incentives are currently prevailing. Many people believe, if a country is using its resources to discover things, for instance, a mineral, on the outer space (including the Moon and other celestial bodies), then it should in return get some incentive or a right over it.

As we have talked about the Moon Express and other private companies to mine water on the Moon, let us talk about their rationale behind it. According to them, bringing water to the Moon is way more difficult than mining it on the surface of the Moon itself. But the Outer Space Treaty, though vaguely, forbids the use of the resources on the Moon. As it is not made clear completely there is a necessity to affirm the exact rules governing it. 

References

  1. https://www.unoosa.org/pdf/publications/STSPACE11E.pdf
  2. https://www.unoosa.org/oosa/en/ourwork/copuos/comm-subcomms.html
  3. https://www.congress.gov/bill/114th-congress/house-bill/2262
  4. https://history.nasa.gov/1967treaty.html

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