There has been much press and public relations about the Commercial Space Launch Competitiveness Act’s and in particular its space resources provisions. Many believe, including myself, that § 51303 is contrary to the Outer Space Treaty. That being said, this post is not about my rationale for that opinion. To the extent I have analyzed and come to a legal conclusion about § 51303, I will not be disclosing the details of that legal analysis publicly.
However, a questionable narrative is being propounded by § 51303’s supporters, including non-space lawyers and some very prominent space lawyers, in that outer space and by extension the Outer Space Treaty is comparable to international waters. This assertion is dubious in that the correlation being promoted is the world’s oceans and the resources within, including marine life, is akin to outer space and its resources.
Specifically, the narrative being promoted asserts harvesting resources in outer space is comparable to harvesting fish from the world’s oceans for profit. This narrative is thin first because § 51303 does not allow for the harvesting of biologics from outer space (presuming they are discovered). More importantly, § 51303 is concerned with the development of of mineral resources, and a comparison to oceans does not help proponents of § 51303 because development of mineral resources in the oceans is governed by the UN Convention on the Law of the Sea (UNCLOS) and in particular the International Seabed Authority.
Aside from this, there appears to be an attempt to rewrite the historical context of the Outer Space Treaty to fit § 51303, and the proponents of § 51303 appear to have taken a scene out The Martian to do so. In The Martian, the aspiring space-pirate Mark Watney considers his version of space law:
There’s an international treaty saying no country can lay claim to anything that’s not on Earth. And by another treaty, if you’re not in any country’s territory, maritime law applies. So Mars is “international waters.” NASA is an American nonmilitary organization, and it owns the Hab. So while I’m in the Hab, American law applies. As soon as I step outside, I’m in international waters.
As I note in my semi-scathing review of The Martian’s space law, some principles of the world’s oceans and maritime law are similar to space law, but aside from any similarities they are two distinct areas of law, which have their own legal rights, duties and prohibitions. Moreover, in a historical and legal context, the Outer Space Treaty has not been analogized to “international waters, but it has been analogized to a terrestrial segment of international law embodied in the Antarctic Treaty of 1959.
A look at the Antarctic Treaty bears out its resemblance to the Outer Space Treaty in many aspects. For instance, the theme of the Antarctic Treaty can be found in the second paragraph whereby:
“Recognizing that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord;”
This is strikingly similar to Article I of the Outer Space Treaty if not in wording then in its framework. Consider, the Antarctic Treaty’s phrase “ Recognizing that it is in the interest of all mankind …” appears to have the same res communis language in Article I, Article II, Article III and Article IV of the Outer Space Treaty, whereby outer space is community property incapable of being appropriated by any person.
Conversely, the world’s oceans and the resources within are taken within the context of the “common heritage of mankind“, which embraces to an extent the concept res nullius, whereby property does not belong to any person till a person claims ownership rights. Notably, this concept is also found in the Moon Treaty of 1979, which the United States does not ascribe to. This is problematic for those analogizing the Outer Space Treaty with the world’s oceans and its resources, including marine life, because the principle of res communis in the Outer Space Treaty is incompatible with res nullius, which is representative of the world’s oceans.
Additionally, other provisions of the Antarctic Treaty parallel the Outer Space Treaty. Consider Article IV(2) of the Antarctic Treaty of 1959:
No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting or supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.
This provision again embodies the same res communis principle found in Articles I, II, III and IV of the Outer Space Treaty. Moreover, examination of the rest of the Antarctic Treaty demonstrates its similarity to Outer Space Treaty, if not exactly, then in principle. To sum it up, comparing the Outer Space Treaty to the Antarctic Treaty is an apples to pears comparison. On the other hand, comparing the Outer Space Treaty to the world’s oceans is like comparing apples to pumpkins.
Proponents of § 51303 may contend those who do not concur with their reading of § 51303 and the analogy of the Outer Space Treaty to the world’s oceans do not support commercialization and have ideologies contrary to capitalism. This oratory has little bearing because the correlation between outer space and by extension the Outer Space Treaty to Antarctica has already been recognized by a federal court.
In Beattie v. United States, 756 F.2d 91 (D.C. Cir. 1984), the United States Court of Appeals for the District of Columbia Circuit had to decide whether it had jurisdiction to hear a claim for tort pursuant to the Federal Tort Claim Act that arose in Antarctica.
The Court when questioning whether it had jurisdiction over a claim that had its origin in Antarctica referred to Article VIII of the Outer Space Treaty and recognized that:
“The legal status of Antarctica has been most frequently analogized to outer space. United States spokesmen suggested the 1959 Antarctic Treaty as a possible model for an outer space treaty during initial formulation discussions in 1965 and 1966. Obviously, the provisions of a treaty relating to outer space are only relevant to the present case by analogy. However, they are instructive as to the way in which the United States has acted with reference to sovereign immunity and liability for acts of its agents in a context very similar to Antarctica.”
The Court continued its analysis noting:
“The [Outer] Space Treaty is obviously not couched in terms of tort claims. However, the basic principle is that in the sovereignless reaches of outer space, each state party to the treaty will retain jurisdiction over its own objects and persons.”
It is noteworthy Beattie was overruled in a later case in 1993 when the U.S. Supreme Court determined the Federal Tort Claims Act does not apply to claims arising in Antarctica. However, the Supreme Court did not invalidate the Beattie court’s jurisdictional and venue analysis, including its comparative analysis of Antarctica to outer space and the Outer Space Treaty. This in of itself is support for the proposition outer space and the Outer Space Treaty are comparable to Antarctica and not the world’s oceans.
There will be continued debate and controversy over § 51303, but to persist in pushing a narrative that attempts to analogize the Outer Space Treaty to the world’s oceans is inaccurate at best because the legal principles underlying the law of the oceans and the law of space are incongruent. On the other hand, the body of space law does have analogies to the laws underlying Antarctica, but in reality the Outer Space Treaty and space law is its own distinct area of law that cannot be compared one-to-one with any other body of international law. That being said, asserting the oceans equate to outer space so as to validate § 51303 not only ignores the history of the Outer Space Treaty but attempts to rewrite it as well.