by Dennis O’Brien (published in The Space Review April 30, 2018)

The conflict between nationalists and internationalists highlighted the inaugural U.S. gathering of the International Institute of Space Law (IISL), held April
16th in Colorado Springs. The one-day conference was part of the annual Space Symposium, a week-long gathering of government, military, business, and
academic leaders sponsored by The Space Foundation.

The significance of space law has increased as both countries and private enterprise have expanded their technical capabilities.  Companies are already
planning to mine resources on the Moon and nearby asteroids, which could be very profitable.  A single asteroid, e.g. 16 Psyche, could supply humanity’s
need for iron, nickel, and platinum for millions of years.  More immediately, the recently discovered water on the Moon and other celestial bodies could be
converted into hydrogen and oxygen, providing fuel and breathable air for bases and extended missions.

The problem for businesses, and anyone who wants to invest in them, is that there is no clear framework of laws concerning such resources.  Who, if
anyone, “owns” the Moon and other outer space resources?  How can any country or company establish ownership rights so that they can develop and sell
such resources?  When disputes arise, as they inevitably will, how will they be resolved?  What are the obligations, if any, of countries and companies to
less-developed countries and to humanity as a whole? Until these questions are answered, it is difficult for any business to make rational investment
decisions.

There are two treaties that received the most attention during the panel presentations and discussions.  The first is the Outer Space Treaty of 1967,
sometimes called the Constitution of Space Law.  Article One states that “The exploration and use of outer space, including the moon and other celestial
bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall
be the province of all mankind.”  Article Two states 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.”

The second treaty is the Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies, commonly known as the Moon Treaty.
This treaty has so far only been adopted by 18 countries, and none of the space-faring ones.  There are two provisions that are sticking points: the
requirement that countries create a framework of international laws to regulate activities in space, and the declaration that outer space is the “common
heritage of mankind” (CHM).  Even though there is no legally binding definition of the CHM, some fear that it would lead to mandatory fees for the use of
outer space and the creation of a super-agency that would inhibit rather than enable commercial activity.

When it comes to an international framework of laws, the United States has decided that it can move forward without one.  In 2015, Congress passed the
Space Resource Exploration and Utilization Act.  The most relevant sections:

(Sec. 402) The bill directs the President, acting through appropriate federal agencies, to:
-        facilitate the commercial exploration for and commercial recovery of space resources by U.S. citizens;
-        discourage government barriers to the development of economically viable, safe, and stable industries for the commercial exploration for and
commercial recovery of space resources in manners consistent with U.S. international obligations; and
-        promote the right of U.S. citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference,
in accordance with such obligations and subject to authorization and continuing supervision by the federal government.
A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource
obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.
(Sec. 403) It is the sense of Congress that the United States does not, by enactment of this Act, assert sovereignty or sovereign or exclusive rights or
jurisdiction over, or ownership of, any celestial body.

Many have disagreed with the assertion that the Act does not assert sovereignty.  The very act of granting property rights for outer space resources to its
citizens seems to be an act of sovereignty, despite the declared “sense of Congress” that it is not so.  The declaration amounts to a diplomatic sleight-of-
hand: The Act states that it will abide by “U.S. international obligations”, then interprets such obligations in a way to exclude activity authorized by the Act.

UPDATE:  On April 25, 2018, The U.S. House of Represented passed H.R. 2809, “A bill to amend title 51, United States Code, [The American Space
Commerce Free Enterprise Act] to provide for the authorization and supervision of nongovernmental space activities, and for other purposes.”  There are
two provisions that specifically reject the scope of the Outer Space Treaty and its jurisdiction over private enterprise:

§80103(c) Compliance With the Outer Space Treaty
(2)(C) The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon
United States nongovernmental entities.
(D) Guidelines promulgated by the Committee on Space Research may not be considered international obligations of the United States.

§ 80308. Global Commons.
Notwithstanding any other provision of law, outer space shall not be considered a global commons.

The “Global Commons” statement is part of the ongoing international discussion over the meaning of space as “the province of all mankind” (Outer Space
Treaty) and the “common heritage of mankind” (Moon Treaty).  More problematic is the assertion that the obligations of the United States under the OST
do not apply to any nongovernmental entities, e.g. private enterprise.  This appears to contradict Article VI of the OST:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies,
whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in
conformity with the provisions set forth in the present Treaty.

Despite these efforts at exclusion, the speakers at the forum generally agreed on the basic structure of space law.  The space treaties, which also include
the Astronaut Rescue and Return Treaty, the Liability Treaty, and the Registration Treaty, form a foundation of policies and procedures that allow
countries and their non-governmental entities to explore and use outer space with the certainty and protections that the law provides.  The national space
laws of any country who has adopted the treaties must conform to them.   This framework has worked well for decades.  It is only because humanity has
developed the technology to move beyond Earth orbit that a new framework of laws must be considered.  (The United Nations has recently published the
full text of all relevant treaties and principles, available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.

The current tension between national laws and international treaties has cause legal uncertainty, and business investors hate uncertainty.  Efforts to
address this were presented by Tanja Masson-Zwaan of The Hague Space Resources Governance Working Group.  According to its website, “The
Working Group members are stakeholders of space resource activities and represent consortium partners, industry, States, international organizations,
academia and NGOs.”  Their recently-published “Draft Building Blocks for the Development of an International Framework on Space Resource Activities” is
an effort to build the international framework of laws that the Moon Treaty calls for without actually requiring countries to adopt the Treaty itself.  For
example, it calls for the “sharing of benefits arising out of the utilization of space resources” and the “establishment of an international fund”, but then
states that “the international framework should not require compulsory monetary benefit-sharing” and “operators should be encouraged [but not required]
to provide for benefit sharing.”  The full text of the Building Blocks is available online at
https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-space-resources-governance-working-group.  You can
also use that site to leave public comments, which will be accepted until July 1, 2018.

The IISL has issued its own position paper concerning the legal uncertainty, concluding:

It is an open question whether this legal situation is satisfactory. Whether the United States’ interpretation of Art. II of the Outer Space Treaty is followed by
other states will be central to the future understanding and development of the non-appropriation principle. It can be a starting point for the development of
international rules to be evaluated by means of an international dialogue in order to coordinate the free exploration and use of outer space, including
resource extraction, for the benefit and in the interests of all countries.

Their full position paper is available at https://iislweb.org/iisl-position-paper-on-space-resource-mining/.

The third international effort to address the current legal uncertainty is being led by the United Nations Committee on the Peaceful Uses of Outer Space.  
UNCOPUOS was meeting in Vienna even as people were gathering for the Space Symposium in the United States.  In 2017, the Committee added the topic
of space resources to its agenda, resulting in many reports and comments being submitted for this year’s meeting.  The draft report of the gathering has
just been released and is available at
http://www.unoosa.org/res/oosadoc/data/documents/2018/aac_105c_2l/aac_105c_2l_304add_3_0_html/AC105_C2_L304Add03E.pdf.  The report has 18
numbered paragraphs detailing what had been submitted to the Committee, along with 29 paragraphs detailing the comments made by various
delegations.  Most of the delegations favored the development of an international framework of laws rather than a reliance on national laws.  Some of the
most relevant comments (emphasis added):

27. Some delegations expressed the view that the Outer Space Treaty guaranteed the freedom of exploration and use of outer space and, in that regard,
did not prohibit the utilization and exploitation of resources contained in celestial bodies.

28. Some delegations expressed the view that taking a broad multilateral approach to space resources within the Committee and its Legal Subcommittee
was the only way to ensure that the concerns of all States would be taken into account, thereby promoting peace and security among nations.

29. The view was expressed that space resources were accessible to only a very limited number of States and to a handful of enterprises within those
States. In that connection, the delegation expressing that view was also of the view that it would be important to assess the impact of a “first-come, first-
served” doctrine on the global economy, which could create a de facto monopoly in complete contradiction to the letter and the spirit of the United Nations
treaties and resolutions.

34. Some delegations expressed the view that, in the light of the increasing participation of the private sector in space activities, an international legal
framework that was developed in a multilateral forum and that clearly defined and guided commercial activities in outer space could play an important role
in expanding the use of outer space and stimulating space activities, and that such a framework was essential as a means of providing legal certainty.

39. The view was expressed that the work undertaken in the Hague Space Resources Governance Working Group was troubling for a number of reasons,
including the following: fundamental principles of interest to all States had been discussed by a limited group of individuals; the Group had made
assumptions about the interpretation of international space treaties; and the output of the Group, namely its study, contained language that was strikingly
similar to recent provisions of national laws on space resources, while at the same time lacking the practical considerations contained in the work of the
Scientific and Technical Subcommittee (e.g., references to the long-term sustainability of outer space activities).

42. Some delegations expressed the view that any national legislation on space resources should proclaim, as its guiding principle, that the use and
exploration of outer space and the utilization of space resources were of paramount interest to humanity, and that space resource activities should be
carried out in a sustainable manner and exclusively for the benefit of all countries, regardless of their levels of economic and scientific development. The
delegations expressing that view also expressed the view that clauses in existing national legislation that contained general terms of conformity with the
international obligations of the State in question were not sufficient to guarantee compliance with the stated treaty principles.

The next panel at the space law conference focused on “Legal Aspects Related to Space Traffic Management”.  The issue of “space junk” had already
been addressed earlier in the day at the opening of the Space Symposium by U.S. Vice-President Mike Pence.  He noted that tens of thousands of pieces
of debris are currently being tracked in orbit.  “As commercial companies continue to send even more satellites into orbit, the volume of space traffic will
only increase in the years ahead,” Pence said.  A new policy was being developed by the Commerce Department to provide “a basic level of space
situational awareness for public and private use.”  Commercial space ventures would be encouraged to partner with the government on sharing date and
developing guidelines for minimizing orbital debris and avoiding satellite collisions.  Alas, there was no mention of requiring all satellites to have de-orbit
thrusters to get them out of the way once their missions were completed.  Relying on the thin atmosphere of low-Earth orbit (LEO) to de-orbit satellites and
debris will take hundreds of years.

The legal framework for satellites in geo-synchronous orbit (GEO) is clearer.  Operators have already signed on to the guidelines of the International
Telecommunications Union (www.itu.int) as a way of ensuring that there is enough space between the GEO satellites to allow for maximum transmission of
voice/image/data without interference.  Since space is limited in GEO, a new proposal would require operators to use the last of their satellites’ fuel to move
to a “graveyard”, a higher parking orbit that would keep them from colliding with newer, active satellites.

The final panel was called the General Counsel Forum and covered several topics.  Sumara Thompson-King, NASA’s GC, spoke of NASA’s use of Space
Act agreements, the public/private partnerships that have helped SpaceX, Sierra Nevada Corporation, and other companies become economically viable.  
Michelle Kley, GC of Maxar Technologies, spoke of mergers and acquisitions of space companies (Hint: dot your i’s and cross your t’s!).  Melissa Force,
GC of Spaceport America in New Mexico, spoke about licensing an orbital launch from an inland spaceport, a growing option now that returnable boosters
and air launches will keep debris from falling on inhabited areas.

Chuck Dickey, Deputy GC of Lockheed Martin Space, and Mohamed Amara, GC of the United Arab Emirates Space Agency, provided the greatest contrast
among the panelists and once again highlighted the tension/conflict between the nationalists and the internationalists.  Dickey spoke of a “new paradigm”
emerging around the U.S.-led Lunar Orbital Platform – Gateway and proposed Lunar Village, the reform of U.S. export control laws, and the possibility of
indemnity agreements among countries and operators, all based on national law.  Amara took the opposite approach, advocating that “Space law should
be made by all!”  He noted that developing countries have historically been economically weak and made victims of economic exploitation.  The interests,
values, and needs of developing countries must be represented in any process of bargaining for an international framework of space law.  The Outer
Space Treaty, he asserted, was designed to help developing countries, repeating the declaration of Article One that “The exploration and use of outer
space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of
economic or scientific development, and shall be the province of all mankind.”

The detailed agenda of the Space Law conference, along with the names, pictures, and affiliations of the panel members, is at https://www.
spacesymposium.org/agenda.

No decisions were made at the conference, and no issues were resolved.  But the mere appearance of the International Institute of Space Law, and the
inaugural session devoted to the subject at the Space Symposium, were a sure sign that the issues presented can no longer be ignored.  Humanity has
finally developed the technology and the economics to support space commerce, and many countries and private entities are on the verge of taking off,
both literally and figuratively.  The question now is whether any one country will force its own agenda and legal system on the rest of the world in an attempt
to establish economic colonies, or if the world will work together to make sure that all humanity benefits from future space exploration and commerce.

As Klaatu reminded us, the choice is ours.

(Dennis O’Brien is an attorney and former member of the NASA-Hastings Law Project. He has recently founded The Space Treaty Project and started a
petition calling for ratification of the Moon Treaty.  His latest book, Major Tom, is a dramatization of the current issues in space law.  For more information,
go to www.spacetreaty.org.)
Space Law 2018: Nationalists vs. Internationalists