Space Future - The Legal Regime For Private Activities in Outer Space

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H W ' N T J D I L A SF
W N White, 15 March 2001, "The Legal Regime for Private Activities in Outer Space", Presented at "Space: The Free Market Frontier ", 15 ARCHIVE
March 2001. Published by the Cato Institute with permission. Released to the Cato Institute in all forms. Copyright 2001 by Wayne N White ,
Jr.. There are currently 222
Also downloadable from http://www.spacefuture.com/archive/the legal regime for private activities in outer space.shtml documents in the archive.
Bibliographic Index References and Referring Papers Printable Version

Bibliography List
Presented at "Space:
KEY DOCUMENTS
The Free Market
Frontier ", 15 March T L R P Here are some key
A O S
2001 documents from the archive
Published by the Cato to get you started:
Institute with
permission. Released 1. What the Growth of a
to the Cato Institute in
Space Tourism Industry
all forms.
Could Contribute to
Copyright 2001 by
Wayne N White , Jr.
Employment, Economic
Attorney at Law, 4465 Growth, Environmental
Kipling Street, Suite 200,
Wayne White Protection, Education,
Wheat Ridge, CO 80033,
303-403-0980
Culture and World Peace
wnwhite@qwest.net 2. Space Tourism Market
Demand and the
Transportation
Introduction Infrastructure
Existing national and international laws provide a rudimentary framework for 3. General Public Space
Travel and Tourism
commercial activities and settlement in outer space and on celestial bodies.
4. Artificial Gravity and the
Although we have limited experience with activities outside of space vehicles
Architecture of Orbital
or enclosed facilities, it is possible to analyze how existing laws will be applied
Habitats
to activities such as mining, manufacturing and construction. One can also
5. Prospects of Space
conclude that private settlement of outer space and celestial bodies is legal Tourism
under existing law. Nonetheless, the paucity or outright absence of law
regarding certain key subjects such as property rights, mining, salvage, liability, More Documents
and dispute resolution is a disincentive to private space activities. Individuals,
companies and investors are unsure of their rights and have no assurance that
Home
their efforts and investments will be legally protected. There is much that
national governments can do to encourage private space activities through About Space Future
international agreements and national legislation. This article discusses the What's New
existing legal regime and proposes new laws and treaties which would Directory of Contents
encourage private space activities.
Topics
Space Tourism
The Existing Regime Space Vehicles
Space Habitat
Several threshold questions present themselves when one considers private
activities in outer space: (1) What laws govern these activities and who has Space Power
jurisdiction to regulate them? (2) What authority do entities have with respect to Space Future Journal
personnel in their facilities, around their facilities and in areas of frequent activity? Papers & Publications
(3) What is the physical extent of private entities' authority? (4) Are activities
Library
protected from outside interference? (5) What laws govern liability for personal
http://www.spacefuture.com/archive/the_legal_regime_for_private_activities_in_outer_space.shtml 1/20
injury and property damage? (6) What are the procedures for dispute resolution Bibliography
and enforcement of criminal law? Who's Who
To find the answers to these questions, one must look first to international treaty Glossary of Terms
law and then to implementing national statutes. At the national level, the National Links to Other Sites
Aeronautics and Space Act (42 U.S.C. § 2451, et. Seq.), 18 U.S.C. § 7(6) and Search
7(7), 25 U.S.C. § 863(d), 35 U.S.C. § 105, 14 C.F.R. 1214.702, and 14 C.F.R.
1217.106 are relevant statutes and regulations. At the international level, two
multilateral treaties are relevant: the 1967 Outer Space Treaty and the Liability
WHAT'S NEW
Convention . 29 July 2012
Added "Space Debris
and Its Mitigation " to
Sovereignty, Jurisdiction and Resource the archive.
Appropriation 16 July 2012
Space Future has been
The Treaty on Principles Governing the Activities of States in the Exploration and
on something of a
Use of Outer Space Including the Moon and Other Celestial Bodies , commonly
hiatus of late. With the
known as the "Outer Space Treaty ,"1 was the first international space treaty, concept of Space
and it provides the framework for all other space treaties. Its most important Tourism steadily
provisions, taken together, delineate the international regime of sovereignty, increasing in
jurisdiction and resource appropriation. Article II of the treaty states that "Outer acceptance, and the
space, including the moon and other celestial bodies, is not subject to national advances of
appropriation by claim of sovereignty, by means of use or occupation, or by any commercial space,
other means." This author, after lengthy analysis, has concluded that Article II much of our purpose
could be said to be
prohibits only national and not private appropriation of territory. However, in
achieved. But this
common law countries such as the United States, legal theory dictates that the
industry is still nascent,
government must have sovereignty over territory before it can confer title on its
and there's much to do.
citizens. Consequently, traditional real property rights would not be possible
So...watch this space.
under this regime. 9 December 2010
Updated "What the
Nonetheless, nations retain considerable authority under the Outer Space Treaty
Growth of a Space
. Article VIII of the treaty says in part that "[a] state party to the Treaty on whose
Tourism Industry Could
registry an object launched into outer space is carried shall retain jurisdiction and Contribute to
control over such object, and over any personnel thereof, while in outer space or Employment, Economic
on a celestial body." Because Article IX of the treaty and other broadly applied Growth, Environmental
international laws also prohibit interference with activities, jurisdictional authority Protection, Education,
under the Outer Space Treaty provides most of the protections traditionally Culture and World
associated with property rights, with a few relatively insignificant limitations. It has Peace " to the 2009
hence been labeled as "quasi-territorial" jurisdiction. revision.
7 December 2008
Taken together, Articles II, VIII and IX provide the following regime for private "What the Growth of a
activities at the international level: (1) space objects occupy locations on a first- Space Tourism Industry
come, first-served basis; (2) Nations have jurisdiction over space facilities and all Could Contribute to
personnel in or near the facility, irrespective of nationality; (3) Personnel have the Employment, Economic
right to conduct their activities without the harmful interference of other states; (4) Growth, Environmental
Although entities may not claim ownership of mineral resource "in place," once Protection, Education,
they have been removed (i.e. mined) then they are subject to ownership; and (5) Culture and World
Jurisdiction (and any rights with respect to a given area) cease when a facility is Peace " is now the top
entry on Space Future's
returned to Earth, destroyed or abandoned or when activity is halted outside a
Key Documents list.
facility.
30 November 2008
The Outer Space Treaty does not specify what rights entities have with respect Added Lynx to the
Vehicle Designs page.
to areas around facilities or in areas of ongoing activities, such as mining sites.
Many authors, both American and Soviet, say that facility operators have a right More Subscribe
to a "safety zone" in the vicinity of facilities. Certainly states have a right to
prevent damage or destruction of a facility by exerting a measure of control over SFJ TOP STORIES
activities within a reasonable distance around the facility. The Outer Space Treaty
How Much Do You Know
and principles of general international law prohibit interference with activities,
About Space
so exercises of jurisdiction in mining areas would also be justified to the extent
necessary to prevent interference and ensure safety. The physical extent of these Space Future Editor Wins
safety zones is unclear, but if the analogous regime for drilling platforms on the NewSpace Journalism
continental shelf is any indication (safety zones of 500 meters), then one could Award
predict that the extent of these zones will be strictly limited. China's First Manned
Docking of Space Module
Administration of safety zones will be most difficult in areas of mining activity. Is a Success
Take for instance the situation where a second entity commences mining
Five Horrifying Facts
operations just beyond an original mining entity's safety zone. If the second
entity's activities occur in the path of the first entity's planned development, would NASA Will Pay You to Eat
this violate the Article IX prohibition against harmful interference? The attendant Astronaut Food
circumstances would probably determine the outcome. If other sites of equivalent Attention Teachers: If You
value were readily available, then the second entity's rights would probably be Don't Apply to This
subordinate to the original entity's primary rights, even though technically beyond Workshop
the limits of its safety zone jurisdiction. Space Is Dirty
The Film That NASA
Liability and Dispute Resolution Banned
SRI holds Inaugural
The 1972 Convention on International Liability for Damage Caused by Space Conference
Objects , commonly known as the " Liability Convention ,"2 sets forth the rules Zubrin's Proposal to Fund
for personal injury and property damage and for resolution of those issues at the "Pathway to the Stars"
international level. Articles I and II of the agreement provide that a nation which More Articles
launches or procures the launching of a space object, or from whose territory a
space object is launched, shall be absolutely liable for damage caused by its
space object on the surface of the earth or to aircraft in flight. With respect to
damage caused elsewhere than on the surface of the earth, however, states are
not absolutely liable but rather are liable on the basis of fault (Article III).
Claims may be asserted on behalf of corporations or individuals by their

government. Claims must be presented through diplomatic channels within one
year of the date on which the damage occurred. If the parties do not reach a
settlement within one year from the date on which a claim is received by the
launching state, then the concerned parties must establish a Claims Commission
chosen jointly by both parties. The Claims Commission shall then decide the
merits of the case and the amount of compensation, if any, on the basis of
majority vote, within one year.
The Outer Space Treaty does not have a dispute-resolution provision which
would apply to issues other than personal injury and property damage. However,
Article III says that parties to the treaty shall carry on activities "in accordance
with international law, including the Charter of the United Nations . . . ." Article 33
of the U.N. Charter3 says that parties shall first "seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice." In the
event that such means fail to achieve a resolution of the issue, Article 36(3)
indicates that "legal disputes should as a general rule be referred by the parties
to the International Court of Justice . . . ." If the dispute cannot be resolved by the
methods set forth in Article 33 and the dispute endangers the maintenance of
international peace and security, then Article 37 requires the parties to refer the
matter to the Security Council.
Space Debris and Contamination

Article VI of the Outer Space Treaty says that parties to the treaty "bear
international responsibility for national activities in outer space ... whether such
activities are carried on by governmental agencies or by non-governmental
entities ...." States shall ensure that national activities "avoid ... harmful
contamination [of outer space and celestial bodies] and also adverse changes in
the environment of the Earth resulting from the introduction of extraterrestrial

matter..." (Article IX).
In his book SPACE DEBRIS: LEGAL AND POLICY IMPLICATIONS , Howard

Baker divides space debris into four classes: inactive payloads, operational
debris, fragmentation debris and microparticulate matter.4 These categories are
very helpful in determining the law's treatment of debris. However, Baker's and
other authors'5 use of the term "inactive payloads" is misleading. Because
satellites are frequently deactivated for periods of time and then later
reactivated,6 and because debris may include objects manufactured in outer
space and not just payloads, the term "inoperative objects" is more correct when
referring to objects which entities can no longer control (the usage apparently
intended by these authors).
Using Baker's categories as so modified (i.e. using the term "inoperative objects")
we can further define the legal status of debris. The first issue is whether debris
can be classified as "contamination." If debris is classified as contamination, then
Article IX of the Outer Space Treaty would require nations to avoid
contaminating outer space with debris. The legislative history of Article IX
however, indicates that treaty negotiators intended to prevent only biological and
possibly chemical or radioactive contamination. Thus, Baker concludes that the
term "contamination" does not include debris.7
The next issue is whether operational, fragmentation and microparticulate debris

constitutes "component parts" and is hence included in the definition of "space
object." The term "space object" appears in several treaties but is not specifically
defined. Article I(d) of the Liability Convention states that the term "space
object" includes a space object, the launch vehicle and the component parts of
both. Article VIII of the Outer Space Treaty refers to "objects launched into outer
space, including objects landed or constructed on a celestial body, and ... their
component parts." On the basis of these provisions, one can conclude that the
term "space object" includes launch payloads, launch vehicles, component parts
of both, and vehicles or facilities constructed in outer space or on celestial
bodies.
If a space object causes damage, the Liability Convention holds the launching
State absolutely liable for damage on the surface of the Earth or to aircraft in
flight (Article II) and liable on the basis of fault for damage in outer space or on
celestial bodies (Article III). Baker looks to the Cosmos 954 incident for evidence
of states' practice but finds the evidence inclusive because the USSR never
admitted liability and the settlement procedures of the Liability Convention were
never invoked.8 Cargill R C Hall distinguishes between identifiable and
unidentifiable objects. He notes that under international maritime law any nation
can destroy unidentifiable flotsam and jetsam. In contrast, derelict vessels which
still carry indicia of national origin can only be destroyed after permission is
secured from the owner and its insurance company.9
This distinction should also be applied in outer space. If the origin of operational,
fragmentation or microparticulate debris can be determined, then the debris
should be classified as a component part of a space object-- subject to national
jurisdiction and all other rights and responsibilities conferred by the various space
treaties.10 Such responsibilities would include liability for damage caused by
identifiable debris such as that created by Cosmos 954's reentry. Unidentifiable
debris, on the other hand, should be considered abandoned and subject to the
law of finds. Thus, one could either appropriate or destroy unidentifiable debris at
will.
National Legislation
Article VIII jurisdiction permits the state of registry to subject its space objects
and personnel to any national laws which are not in conflict with international
law.11 During treaty negotiations, the Soviet Union initially argued that space
activities should "be carried out solely and exclusively by states,"12 but the U.S.
refused to accept that provision.13 As a compromise, the United States
proposed,14 and the U.S.S.R. accepted15 the clause in Article VI which says
that "[s]tates . . . shall bear international responsibility for national activities . . .
whether such activities are carried on by governmental . . . or . . . non-
governmental entities."16 Article VI goes on to state that "[t]he activities of non-
governmental entities in outer space including the moon and other celestial
bodies, shall require authorization and continuing supervision by [parties to the
treaty]." Accordingly, states may legislate with respect to a broad range of both
public and private activities; and, in most circumstances, they exercise as much
authority within the vicinity of their space facilities as they would within their
territory on Earth.
The United States has taken the lead among nations in enacting legislation
implementing he jurisdiction conferred by the Outer Space Treaty . 18 U.S.C. §
7(6) extends U.S. maritime and territorial jurisdiction to ""any vehicle used or
designed for flight or navigation in space on the registry of the U.S. while that
vehicle is in flight . . . ." Section 7(7) of the statute extends the same jurisdiction
to "[a]ny place outside the jurisdiction of any nation with respect to an offense by
or against a national of the United States." Neither of these statute sections
specifically provides for jurisdiction over space objects which are not "vehicles."
The Space Station Agreement does provide for U.S. jurisdiction though, and the
International Space Station is at present the only space object with a relatively
fixed location which the United States has made a commitment to construct and
occupy.
The National Aeronautics and Space Act gives NASA jurisdiction to regulate
civilian space activities. 14 C.F.R. § 1214.702 gives the NASA commander of
the space shuttle the authority to ensure the safety and efficiency of the vehicle.
Analogous delegations of authority can be expected with respect to permanently
located facilities in outer space.
Other legislation worthy of note includes 25 U.S.C. § 863(d) [Internal Revenue

Code] which provides that "any income derived from a space or ocean activity-
(A) if derived by a United States person, shall be sourced in the United States."
35 U.S.C. § 105 provides that "(a) Any invention made, used or sold in outer
space on a space object or component thereof under the jurisdiction or control of
the United States shall be considered to be made, used or sold within the United
States [unless the space object is carried on the registry of a foreign state or
otherwise provided in an international agreement]. (b) Any invention made, used
or sold in outer space on a space object or component thereof that is carried on
the registry of a foreign state . . . shall be considered to be made, used or sold
with the United States . . . if specifically so agreed in an international agreement
between the United States and the state of registry. 14 C.F.R. § 1217.106
provides that "articles brought into the customs territory of the United States by
NASA from space shall not be considered an importation, and no certification or
entry of such materials through U.S. Customs shall be required. This provision is
applicable . . . whether or not the articles were launched into space aboard a
NASA vehicle."
The Space Station Agreement

Jurisdiction: The 1998 Agreement Among the Government of Canada,

Governments of the 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 , commonly known as the Space Station
Agreement,17 requires each Partner to register as space objects the elements of
the station which it provides. Each Partner then retains jurisdiction and control
over the elements which it registers, and over personnel in or on the station who
are its nationals (Article 5). Partners must also designate a lead agency to
administer their portion of the project and to coordinate efforts with other
Partners. "The United States, acting through NASA , shall . . . be responsible for
overall program coordination and direction of the Space Station . . ., [and] for
overall planning for and direction of the day-to-day operation of the [station]"
(Article 7(1).
Liability: Article 16 of the Agreement establishes a cross-waiver of liability for

station Partners, their contractors, subcontractors at all tiers, and all employees
and suppliers of those entities. The waiver applies to all launch vehicle activities,
Space Station activities, payload activities in transit, and payload activities on
Earth, including further development of payload products or processes in
implementation of the space station agreement. Partners are required to extend
the waiver through contract provisions (or other means) to contractors and,
presumably through flow-down provisions, to subcontractors. Intellectual
property, wrongful-death and related claims, and claims for damage caused by
willful misconduct are specifically excluded from the cross-waiver of liability.
Provisions for protection of intellectual property are included elsewhere in the
Agreement.
Criminal Jurisdiction: Article 22 provides for criminal jurisdiction. Partners have

criminal jurisdiction over their nationals on any flight element per Article 22(1).
Article 22(2) provides that:
In a case involving misconduct on orbit that: (a) affects the life or

safety of a national of another Partner state or (b) occurs in or on
or causes damage to the flight element of another Partner state,
the partner whose national is the alleged perpetrator shall, at the
request of any affected Partner state consult with such state
concerning their respective prosecutorial interests. An affected
Partner state may, following such consultation, exercise criminal
jurisdiction over the alleged perpetrator provided that, within 90
days of the date of such consultation or within such other period as
may be mutually agreed, the Partner state whose national is the
alleged perpetrator either: (1) concurs in such exercise of criminal
jurisdiction, or (2) fails to provide assurances that it will submit the
case to its competent authorities for the purpose of prosecution.
Article 22(3) of the Agreement says that the Agreement shall provide a legal
basis for extradition of alleged perpetrators if the Partners involved do not have
an extradition treaty.
Trends in International Law

There are several multilateral agreements which directly address issues of
resource appropriation and real property rights in areas which are not subject to
territorial sovereignty. These agreements include the Moon Treaty , the Law of
the Sea Treaty and the Protocol on Environmental Protection to the Antarctic
Treaty. The terms of these agreements and their degree of acceptance in the
international community provide insight into other nations' developing views on

resource appropriation and property rights.
In 1979 U.N. representatives completed the Agreement Governing the Activities

of States on the Moon and Other Celestial Bodies , commonly known as the
"Moon Treaty ."18 This treaty declares space resources "the Common Heritage
of Mankind" and specifically prohibits any form of property rights with respect to
such resources. Vague terms in the agreement also require "equitable sharing of
benefits" with non-space-faring nations, while other provisions would establish a
significant bureaucracy to control development. This treaty met with opposition
from pro-space activists and mining interests and was never signed by key
nations including the United States and the U.S.S.R. It was subsequently ratified
by nine countries, and entered into force with respect to those nations on July 11,
1984.
The contemporaneously negotiated Convention on the Law of the Sea,

commonly known as the "Law of the Sea Treaty"19 contained provisions similar
to the Moon Treaty , and it received virtually the same reception in the
international arena. Initially, the U.S., the U.S.S.R., France, Japan, and the
Federal Republic of Germany did not sign the treaty and each enacted national
legislation allowing their corporations to mine the seabed.
In the late eighties as it became evident that the Convention as written would
likely enter into force without the participation of many important states, the
Secretary General convened an informal working group to attempt to resolve the
issues of concern to the United States and others. That effort resulted in the
adoption on July 28, 1994 of the Agreement Relating to the Implementation of
Part XI of the United Nations Convention on the Law of the Sea of December 10,
1982, which effectively modified the [Sea Treaty] with respect to its seabed
mining provisions. The United States then signed the Agreement and the 1982
treaty . . . . The treaty entered into force in November 1994 and has since been
ratified by 130 states including . . . most of the significant users of the sea except
for the United States. [The United States has never ratified the treaty].20
The Moon Treaty and the Sea Treaty pitted the developed nations against the
undeveloped nations. The undeveloped nations wanted to share in the benefits of
resource appropriation even though they did not have the wherewithal to make
the necessary financial investment. The developed nations wanted to appropriate
resources without excessive bureaucracy and taxes which were perceived to be
unfair. Interests opposing these treaties were also concerned that the treaties
would establish undesirable precedents in international law with respect to wealth
transfer, technology transfer, and property rights, among other things.
In contrast, the more recent Protocol on Environmental Protection to the Antarctic

Treaty, an international agreement ratified by 26 countries, resulted from a
confrontation between environmental and development interests. An earlier
Antarctic resources regime would have allowed mineral and oil exploitation,
subject to strict control requiring unanimous case-by-case approval from the 20
nations that hold voting rights under the original 1959 treaty. However, as a result
of intense lobbying efforts by Greenpeace and other environmental groups,
Australia and France decided to not sign the agreement. Subsequently, nations
drafted the Protocol on Environmental Protection, which prohibits any activity
relating to mineral resources, such as mining or oil drilling, other than for
scientific research, for a period of at least 50 years. The Protocol entered into
force on January 14, 2000.21
Despite the unfavorable attitudes toward private enterprise that are evidenced by
these treaties, the collapse of the Soviet Union, globalization of business, the
internet, and other factors have, in this author's opinion, led to a significant
change in attitudes, particularly during the past five years. Increased respect for
market incentives and commercialization is definitely the trend in international
law. This trend seems to be most pronounced with respect to outer space, due to
the relative absence of environmental issues, rapid technological change, and
the increasing profitability of space activities, led by the satellite communications
industry. Commercialization and real property rights are now, arguably, the most
popular topics in international space law, with member states other than the
United States even calling for discussion of the issues in the U.N. Committee on
the Peaceful Uses of Outer Space, the same body which facilitated negotiation
and drafting of the Moon Treaty .
Regardless of international attitudes, the Law of the Sea Treaty and the Protocol
on Environmental Protection [of Antarctica] should not provide precedents for
outer space. While deep sea mining is only feasible at present in very limited
areas, space resources are virtually limitless, and there is no justification for
controls, international administration or benefit sharing. Even if it takes
undeveloped countries decades longer to reach the point where they can
appropriate space resources, said resources will still be plentiful and readily
available. Furthermore, there are compelling reasons for promoting private space
activities which do not apply to the seas and Antarctica. First, the unique
environment of outer space provides opportunities which do not exist on Earth;
unlimited and uninterrupted solar energy, near vacuum, microgravity, and
temperature extremes offer unique prospects for economically efficient chemical
and manufacturing processes. Secondly, moving industry off the planet will
reduce pollution on Earth, while the solar wind will sweep away any pollution
which occurs beyond low earth orbit. Third, development and settlement of outer
space will provide a much needed outlet for those creative, adventurous
individuals and companies that aren't happy unless they are pushing the
boundaries of new frontiers. Finally, establishing self-sufficient communities
beyond Earth will help ensure that terrestrial species will survive in the event of
global catastrophe.
The Moon Treaty , due to its lack of acceptance, clearly provides at least one
precedent: that prohibition of property rights and onerous control and taxation of
resource appropriation is unacceptable to most nations with respect to outer
space.
The Outer Space Treaty : Amend, Withdraw or

Leave it Alone?
Many non-lawyers have said "Why bother with the limitations of the Outer Space
Treaty ? The U.S. should just withdraw from the treaty." This threshold question
deserves to be addressed. Any state party to the Outer Space Treaty may
unilaterally withdraw from the treaty with one year's written notice, pursuant to
Article XVI. However, the weight of international legal opinion indicates that at
least some of the treaty's provisions have become customary international law.
This means that those provisions have been so widely adopted, have been so
widely accepted by non-signatories, and have been accepted for such a long
period of time that they have become principles of international law which bind
even those countries that are not party to the treaty.
Article II of the treaty, which prohibits territorial sovereignty, is the treaty provision
which has most likely become customary international law. That provision also
appeared in the 1963 Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space, which was adopted
unanimously by the U.N. General Assembly.22 Moreover, in the thirty-three years
since the Outer Space Treaty entered into force, all of the space-faring nations
have refrained from asserting territorial claims. On the other hand, one could
make a plausible argument that nations didn't make territorial claims because
they did not have the economic and technological resources necessary to perfect
a territorial claim under international law (generally defined as "the continuous
and peaceful display of state authority,"23 which as a practical matter means
establishing and maintaining military control).
Regardless of whether the prohibition of territorial sovereignty has actually

become customary international law, the widespread opinion that it has, means
that withdrawal from the treaty would lead to an international outcry, particularly if
withdrawal were followed by territorial claims, which seems to be the primary
reason why some space activists and entrepreneurs think that we should
withdraw. In and of themselves, unfavorable international opinion and political
pressure do not provide sufficient justification for remaining party to a treaty that
is allegedly unfavorable to national interests. However, there are other factors
which argue against U.S. withdrawal from the Outer Space Treaty : (1) history
shows that competition for territorial claims leads to armed conflicts. Militarization
of outer space would direct scarce resources away from private development; (2)
it would be difficult to delineate boundaries in outer space, (3) private claims
would only exercise control over areas that are actually used, whereas national
territorial claims would remove large areas from development; (4) prohibiting
territorial sovereignty makes the transition to self-governance far easier for
settlers once they become self sufficient; (5) having properties which are subject
to different national laws in close proximity to each other would lead to cross-
fertilization of legal systems. Competition between national legal systems will in
most cases lead to better laws; (6) the treaty has no provisions for expensive
governing bodies; and (7) there is little in the treaty that is really objectionable.
For the most part the treaty lets nations govern their own activities, subject to
general principles that the United States already subscribes to.
So, if one concludes that the United States should not withdraw from the Outer
Space Treaty , should we amend it? The simple answer is no, it makes more
sense to address the few ambiguities and shortcomings in the treaty in ancillary
treaties which expand upon the existing provisions of the Outer Space Treaty .
The Convention on International Liability for Damage Caused by Space Objects
and the Convention on Registration of Objects Launched into Outer Space have
already expanded on provisions in the Outer Space Treaty . We are going to
need ancillary treaties on jurisdiction, real property, mining and salvage anyway,
so why amend a treaty which has already achieved widespread acceptance in
the international community?
Recommendations for Further Development of

Space Law
In various other articles, this author has recommended that nations promote
private activities by executing international agreements relating to jurisdiction,
real property rights, mining law and salvage law, with implementing national
statutes. Following are summaries of those proposals.
Real Property Rights

Common law countries which are parties to the Outer Space Treaty , including
the United States, cannot confer traditional property rights on private entities
because such rights derive from territorial sovereignty, which is prohibited by

Article II. Civil law countries follow the natural law theory of property rights, and
can therefore recognize property rights independent of territorial sovereignty.
Because of this dichotomy, and for other reasons set forth above, the author has
proposed a regime of real property rights which is consistent with the terms of the
Outer Space Treaty . These property rights would derive from the jurisdiction
conferred by Article VIII, and could be conferred and recognized by any country
in the absence of territorial sovereignty.
The rights conferred include: (1) the right to exclude others from space facilities
and safety zones, (2) the right to be free of interference from others, (3) the right
to control the activities of all natural persons and legal entities within the owner's
space facility and safety zone(s), (4) the right to direct the activities of space
vehicles and persons inside those vehicles while the vehicle is in the space
facility and safety zone(s), (5) the exclusive right to appropriate resources within
the space facility and its related safety zone, and (6) the right to sell property
rights.
In accordance with the terms of the Outer Space Treaty , the property rights are
subject to the following limitations: (1) If the owner of the space facility or safety
zone(s) stops using his property for peaceful purposes, the rights shall
immediately terminate, (2) if the owner of the space facility or safety zone(s)
abandons the property for a period of 2 years or more, the rights shall terminate,
(3) if the owner of an orbital facility deviates from the registered orbital
parameters by more than [a percentage to be defined when the treaty is
negotiated], for a period of one month or more, the rights shall immediately
terminate, (4) owners may not establish property rights which would prevent
others from having free access to outer space and celestial bodies, (5) owners
shall only have the right to direct the activities of space vehicles on the registry of
other states, and the persons inside those vehicles, to the extent necessary to
protect the safety of other space objects and persons within the owner's space
facility and safety zone(s), and (6) owners shall not have the right to exclude
persons who come to inspect the owner's space facility, on the basis of
reciprocity, pursuant to Article XII of the Outer Space Treaty .
Treaty on Jurisdiction and Real Property Rights in Outer Space
At the International Institute of Space Law annual Colloquium in Rio de Janeiro

last fall (October 2000), the author presented a draft Treaty on Jurisdiction and
Real Property Rights in Outer Space which would expand upon Articles II and
VIII of the Outer Space Treaty . This treaty implements the author's proposal for
real property rights in outer space and the author's recommendations for further
specifying the extent of Article VIII jurisdiction.
Mining Law
As stated above, the Outer Space Treaty permits natural persons and
companies to remove and appropriate resources in outer space or on celestial
bodies, but does not permit them to own resources "in place." At present, there is
no regulation of extraterrestrial mining activities, except for nations that have
ratified the Moon Treaty . Nonetheless, pursuant to Article VIII of the Outer
Space Treaty , nations can enact laws to govern the mining activities of their
citizens and mining activities within space facilities and safety zones on their
registry.
In the United States, the principal law which governs terrestrial mining activity is
the General Mining Law of 1872.24 That law promotes resource appropriation by
allowing prospecting and mining virtually free of charge on America's public
lands. Miners' prospecting activities are protected by the case-law doctrine of

"pedis possessio" (discussed below), and after a valuable mineral deposit has
been discovered, by the General Mining Law which grants a "patent" or fee title
to the land encompassing the deposit.
Miners do not need a federal license or other grant of permission to prospect and
mine under this system. To obtain a patent to the land in which minerals are
located, the miner must discover a valuable mineral deposit, locate the claim,
record the claim, do at least $100 of annual assessment work or other
improvements, file annual affidavits of assessment work with the Bureau of Land
Management, and apply for the patent.
The italicized phrases are terms of art which have been further defined by the
courts. For example, the courts have subjected the requirement of "discovery" to
a "prudent man standard" and a "marketability test"; i.e. the discovery must be
such that only a prudent person would expend further effort, and the minerals
discovered must offer some possibility of generating a profit. The term "valuable
mineral" has been scrutinized to determine what substances qualify; in the
context of this article, it is important to note that water is not considered a
"valuable mineral." Finally, the term "locate" is the process of marking and
describing the boundaries of the claim. The General Mining Law specifically limits
the size of claims which may be located.
Pedis Possessio: While prospecting, and before discovery, miners are protected
in their occupation of the land by the doctrine of pedis possessio. "Pedis
possessio" literally means "actual possession." The doctrine says that a
prospector occupying an area and diligently searching for minerals is treated as a
licensee or a tenant at will; no one else can acquire rights in the area through a
forcible, fraudulent or clandestine intrusion. If, however, the prospector does not
act to exclude others or does not search diligently for minerals, and another
prospector enters the area peaceably, without fraud or subterfuge, and discovers
minerals and locates a claim, the location is valid and the original miner must
respect it.25
This doctrine only provides miners with limited protection. Some minerals cannot
be discovered without substantial amounts of capital, specialized equipment, and
engineering, technical and organizational expertise. In those instances, miners
face the risk of losing their entire investment if another party makes a peaceable
discovery without their knowledge.
Courts have addressed this issue with respect to uranium, which is difficult to
discover because deposits are often deep beneath the earth. To more adequately
protect their investments, uranium prospectors have adopted the practice of
locating and recording their claims before actual discoveries are made. Although
federal and state statutes require miners to discover a valuable mineral before
locating a claim, courts and regulatory agencies have allowed miners to validate
claims with subsequent discoveries, so long as other miners have not established
intervening rights.
In several cases, state supreme courts have expanded the pedis possessio
doctrine in connection with uranium prospecting. In 1958 the Utah Supreme
Court held that miners could base a valid discovery on radiometric detection and
geological analysis, particularly when miners had physically discovered deposits
nearby.26 In a similar case, Colorado validated a discovery based on radiometric
detection, assaying and the type of rock present at the site.27 Finally, in a third
case, the U.S. Geological Survey made an initial discovery while preparing
anomaly maps from airborne surveys. The Nevada Supreme Court validated the
claim of the first on-the-ground locator using a geiger counter (radiometric

detection).28
These cases may find application in the law of outer space because
extraterrestrial miners face circumstances which mirror those faced by uranium
prospectors: they cannot discover minerals without substantial amounts of
capital, specialized equipment and engineering, technical and organizational
expertise. One author has gone a step further and suggested that courts need to
provide protection to miners who do no more than locate claims and demonstrate
a feasible plan for their exploration.29 In light of the risks faced by extraterrestrial
miners, that would seem to be a valid recommendation for the field of space law.
Mineral Leasing: The Mining and Minerals Policy Act says that it is United
States policy to "foster and encourage private enterprise in [mining activities]."30
However, in recent years public land law has been partly superseded by
overriding public considerations as the government has sought to prevent or
diminish mining's adverse effects on other resources and amenities.31 The
General Mining Law provides that valuable mineral deposits "shall be free and
open to exploration and purchase . . . under regulations prescribed by law . . . so
far as the same are applicable and not inconsistent with the laws of the United
States.32 This statutory language has resulted in regulations of mining activities
which encompass a broad range of public policy issues including pollution control
and environmental impact, zoning, land use planning, reclamation, administration
of the public trust, competing recreational and preservational values and wildlife
protection.33
The impact of these regulations has been minimal however, when compared to
the effect of laws which have withdrawn various lands and minerals from the
coverage of the General Mining Law. There are three principal reasons why the
United States has enacted such laws: (1) some minerals, such as coal, are so
abundant that there is no need to encourage development; (2) the government
has an ongoing need for fuel for government vessels and vehicles and it makes
no sense to give fuel away and then buy it back; and (3) if valuable minerals are
not given away, they can become a source of revenue.
To implement these policies, the United States has enacted a leasing system for
certain minerals and in certain areas of the public domain, as an alternative to the
General Mining Law's location system. Minerals subject to leasing include the
fossil fuel minerals (oil, gas, oil shale, coal, asphalt, bituminous rock, and solid
and semi-solid bitumen); fertilizer and chemical minerals (phosphate, potash,
sodium) and geothermal resources.34 All minerals on acquired lands, which
amount to about eight percent of all federal lands, are subject to leasing rather
than location,35 as are minerals on the outer continental shelf (principally oil and
gas).36
Leasing differs from the General Mining Law's location system in the following
respects: (1) miners must obtain permission from the federal government before
prospecting or mining; (2) miners must pay royalties, rents, and bonus payments;
(3) miners may only obtain leases through competitive bidding in areas where
minerals are known to exist; (4) miners do not obtain fee title; leases have
specified time limits which may be extended if minerals are being produced in
commercial quantities; (5) the United States may require "due diligence" and (6)
the United States may require protection of competing resources and the
environment.37
As one can see, the mineral leasing system imposes greater regulatory burdens
and expense upon miners than the General Mining Law's location system.
The S.S. Central America Case: In June of 1986 the Columbus America
Discovery Group located the wreck of the SS Central America, which sank in
1857. The ship carried gold which is now worth approximately one billion
dollars.38 Using computer analysis, advanced sonar and a remote-controlled
robotic probe, the group found the wreck approximately 160 miles off the South
Carolina coast, nearly 1 1/2 miles beneath the surface.39
Unfortunately, Columbus America had to go to court to quiet conflicting claims to

the treasure. Shortly after the group made its discovery, a second expedition
began searching for the Central America in the immediate vicinity of Columbus
America's activities. When the second ship refused to leave the area, Columbus
America sought relief in federal district court.
To prove their discovery and to permit the court to assert jurisdiction, Columbus
America used a telerobotic vehicle to retrieve a piece of coal from the wreck. The
coal was delivered to the court, which acknowledged the discovery, asserted its
jurisdiction, and issued a Temporary Restraining Order prohibiting other ships
from entering the area.40 In subsequent actions the court issued Preliminary and
Permanent Injunctions, ultimately enjoining other ships from entering a twenty-
square-mile area surrounding the treasure site.41
The court established two important precedents in this case: (1) it protected the
rights of individuals to exclude others from a specified area in international
waters, and (2) it recognized telepresence as a valid method of discovery.
Admiralty law previously protected only the rights of nations;42 this is the first
time that a court has granted rights to private individuals.43 And telepresence
now offers an alternative to the human presence which admiralty law has
traditionally required to establish possession.44 Legal experts have already
recognized that these precedents may be applied directly to extraterrestrial
mining and salvage operations.45
Recommendations: Extraterrestrial miners will face a situation similar to that

faced by both uranium miners and the Columbus America Group: first, they will
have to invest a substantial amount of money and effort before they begin their
projects; second, they will have to use remote sensing and robotic probes to
locate minerals; and finally, they face substantial risk should others dispute their
claims. In light of these circumstances, a mining law should be drafted which
protects miners' rights and encourages investment to the maximum extent
possible.
Mining laws for outer space should follow the precedent of the General Mining
Law. These laws should establish a mineral location system similar to that set
forth in the General Mining Law. The law should however, be modified to reflect
the need for greater protection of miners' rights prior to discovery, and to
recognize the role of remote sensing and telerobotics in the process of discovery.
Legislators should also change the definition of "valuable mineral" to reflect the
fact that some minerals (like water) that are not particularly valuable on Earth,
may be of much greater value in outer space.
Salvage Law
The word "salvage" has been defined as "the act of saving or rescuing a ship or
its cargo" and as "something extracted [from refuse] as valuable or useful."46
When so defined, salvage is an attractive prospect for extraterrestrial operations.

There are many reasons why salvage is desirable: (1) rescuing ships reduces the
incidence of death and property loss; (2) re-using hardware which is already in
space saves the expense of building and launching new hardware; (3) extracting
raw materials from inoperative space objects and space debris could provide
critical materials, pending the advent of mining and materials processing; and
finally (4) recovery of space debris reduces hazards to the Earth and to
spacecraft, satellites, and orbiting facilities.
The need for salvage services is already apparent. The increasing debris
population in Earth orbit poses hazards for spacecraft, satellites and especially
for long duration facilities such as space stations. Space debris can also threaten
the Earth. In recent years several large space objects have survived reentry
through the atmosphere. These include Cosmos 954 in 1978 and Skylab in 1979.
Although fragments of Skylab did fall on land, no damage was incurred. The
Cosmos 954 satellite contained a nuclear power source however, and upon
reentry, spread radioactive debris over a large area of northern Canada. Although
no lives were lost, cleanup costs totaled $14 million.47
The risks posed by space debris provide considerable incentive for its removal,
but the cost of such operations may be prohibitive. Such costs might be offset,
however, if the entity removing the debris received some or all of the economic
benefit derived from that debris. Thus, while scientists and engineers continue to
discuss technical solutions, several legal commentators have suggested that
salvage laws could provide economic incentive for debris removal.48
Salvage law could also promote economic use of inoperative space objects. In
1992 U.S. Space Command reported that Approximately 73% of the satellites in
Earth orbit were inoperative.49 Salvage of inoperative satellites has already been
demonstrated. In 1984 the space shuttle Discovery recovered two disabled
communication satellites, Palapa B-2 and Weststar VI. The satellites were
returned to Earth for refurbishment and re-use. Before the satellites could be
recovered, however, the owners of the satellites, their insurers and the NASA
legal staff had to spend considerable time negotiating and drafting agreements to
transfer title to the satellites to the insurers and to clarify the rights and
responsibilities of the parties.50
Undoubtedly salvage laws would provide greater legal certainty in the process of
contracting for salvage services. More importantly, salvage laws could ensure
that entities receive equitable compensation when circumstances preclude a
contract. For the reasons set forth above, salvage laws are desirable as a matter
of public policy.
Maritime and Admiralty Law: United States admiralty law defines salvage as
"the compensation allowed to persons by whose assistance a ship or her cargo
has been saved, in whole or in part, from impending peril on the sea or in
recovering said property from actual loss as in cases of shipwreck, derelict or
recapture."51 More recent laws permit salvors who save lives to share in the
compensation granted to salvors of the ship and cargo.52
The following elements are necessary for a valid salvage claim: "(1) there must
be a marine peril to the property to be rescued; 2) there must be a voluntary
service not owed to the property as a matter of duty; and (3) there must have
been success in saving the property or some portion of it from impending
peril."53 Generally, salvage awards are not granted where the property owner
has expressly refused the salvor's services.54
In the absence of a contract for salvage services (or if a salvor claims that a
contract was signed under duress or is otherwise inequitable), the salvor may
seek compensation through the courts. The amount of compensation granted to
a salvor is determined at the court's discretion based on the circumstances of the
case. Factors considered by the courts include: "(1) the labor expended by the
salvors; (2) the promptitude, skill and energy displayed in saving the property; (3)
the value of the property employed by the salvors...; (4) the risk incurred by the
salvors in securing the property from the impending peril; (5) the value of the
property saved; and (6) the degree of danger from which the property was
rescued."55 Compensation is limited to the value of the property saved, although
the award can be far in excess of actual expenses.56
The salvage award is paid by the vessel owner, vessel operator and cargo
owners who benefited from the salvage operation.57 The salvor does not
become the owner of the salved property, he merely has a lien against the ship
and cargo which can be sold to pay the award if necessary.58
The only instance in which the salvor would become the owner of the property
would be in those cases where the court finds that the property has been
abandoned. In those instances the property is deemed to have returned to a
state of nature, and the first person to find it and reduce it to actual or
constructive possession becomes its owner. This is known as the law of finds.59
In the absence of express abandonment by the property's owner, United States
courts have only found abandonment when adjudicating salvage of long lost
wrecks.60
Historically, the international law principle of sovereign immunity has precluded

application of salvage laws to ships owned and operated by foreign
governments.61 Some nations, including the United States, have made an
exception to the rule of sovereign immunity specifically for the purposes of
salvage.62 Pursuant to the Public Vessels Act, the United States permits salvage
awards to U.S. nationals and to foreign nationals on the basis of reciprocity, for
services rendered to government ships. In recognition of this practice, the
Brussels Convention was amended in 1967 by a Protocol which extends the
treaty's application to public vessels.63
Maritime salvage law provides the best precedent for space salvage laws. The
basic elements of maritime salvage law can and should be adapted to outer
space. Thus, those who rescue space objects and their cargoes from peril and
return them to their owners should be entitled to equitable compensation
calculated on the basis of criteria similar to those used by maritime courts. If
salvage services are provided pursuant to a preexisting duty, compensation
should not be granted. And, life salvors should share in compensation granted to
property salvors.
Space salvage should be predicated on similar notions of jurisdiction. Only

identifiable objects can be the subject of national jurisdiction. Unidentifiable
debris should be considered abandoned, returned to a state of nature and
subject to appropriation or destruction by the first to find it. As in recent maritime
cases, inoperative space objects should only be classified as abandoned after a
very long period of time has elapsed, and only if the original owner no longer
displays any intent to retain ownership.
Treatment of public space objects should be similar to that found in maritime law.
Any treaty which is enacted should contain a clause similar to that found in the
1989 Salvage Convention, i.e. it should prohibit salvage of public objects except
when a nation provides otherwise. Because nations may wish to allow salvage of
some public objects while retaining absolute jurisdiction over others (e.g. defense
satellites), this author recommends that such countries periodically publish a list
of objects available for salvage; other public objects would be off-limits and any
approach to such objects would be considered a violation of national sovereignty.
Dispute Resolution
As noted above, the Outer Space Treaty does not provide a dispute resolution
procedure other than consultation between the parties. The U.N. Charter,
incorporated by reference in the Outer Space Treaty , permits parties to submit
to the jurisdiction of the International Court of Justice, and then to have disputes
decided in that venue. The United States declared its acceptance of the Court's
jurisdiction under this provision in 1946. However, the United States withdrew the
declaration in 1985, in response to the court's disposition of the case Nicaragua
v. United States. In its formal explanation, the United States offered the following
reasons for its withdrawal: (1) the majority of other nations had never accepted
the Court's compulsory jurisdiction; (2) the Court had been misused for political
reasons; (3) continued acceptance of the Court's jurisdiction was contrary to the
United States' commitment to the principle of equal application of the law; and (4)
continued acceptance of the Court's jurisdiction would endanger the United
States' vital national interests.64
Other nations share similar views, and very few states have declared themselves
subject to the Court's compulsory jurisdiction.65 In fact, "[n]ot a single State with
remarkable space activities has recognized the jurisdiction of the International
Court of Justice according to the optional clause . . . ."66 It is therefore not
surprising that states have not utilized the Court to the extent which parties
anticipated when the United Nations Charter was drafted.
As set forth above, the Liability Convention provides dispute resolution

procedures (Articles VIII - XIX). One writer has compared the remedies offered
by the Liability Convention to litigation in national ("municipal") courts. With
respect to the Liability Convention , he observes that: (1) governments may not
assert claims because of political considerations, to the detriment of private
parties; (2) the Claims Commission may define damages narrowly, resulting in
smaller awards than one could expect in some municipal courts; and (3)
diplomatic negotiations may proceed indefinitely because the Claims
Commission is only formed if one of the parties so requests. The writer contrasts
these aspects of the Liability Convention with the familiar uncertainties and
complexities of international litigation, which include jurisdictional questions,
sovereign immunity, the doctrine of forum non conveniens, and choice of law. He
concludes that municipal litigation is subject to less uncertainty than the Liability
Convention procedures, and therefore "provides the most beneficial avenue for
recovery for private claims."67
In the absence of an agreement establishing binding procedures for the field of

space law, it is likely that most national governments will continue to resolve their
disputes through diplomacy. It is unlikely, however, that private parties will rely on
state governments to resolve their disputes. Private parties that have already had
disputes have resorted to other venues. Many have filed claims in United States
courts,68 while at least one dispute had been submitted to international
arbitration when the author wrote on this topic in 1992.69
In the broader field of international disputes, most private parties prefer

arbitration over litigation. There are many reasons for this preference. Arbitration
is confidential. It allows parties to select an arbitrator that they view as impartial,

who has expertise in the subject matter of the dispute. Arbitration also avoids
much of the complexity and uncertainty inherent in international litigation.
Typically, jurisdiction, choice of forum and choice of law are not at issue in
international arbitration, because parties have already resolved those issues,
either by contract before the dispute arises or by agreement after the dispute
arises.70 Finally, arbitration tends to be quicker and less expensive.
International arbitration does have its drawbacks, however, particularly as a

forum for space law disputes. The first problem has to do with institutions'
competence to hear space law disputes. All of the institutions listed above define
the types of disputes which they will administer. In most cases arbitral
organizations interpret those definitions liberally. The ICC, for example, only
accepts "commercial" disputes, but as a practical matter, accepts virtually any
dispute which is submitted for arbitration. Nonetheless, some parties may not
choose to arbitrate space law issues because they do not believe that a given
dispute falls within the categories of disputes eligible for arbitration.
A second weakness in the current scheme is the disputants' and arbitral forums'
unfamiliarity with the field of space law. While many disputes arising in outer
space will involve questions of contract interpretation or other issues which do
not differ from terrestrial disputes, some will present questions which are unique
to the field of space law. In those cases, parties to the dispute, and even the
arbitral institution, may not know which arbitrators are best suited to resolve the
dispute.
The final problem is that arbitration does not establish the precedents which court
rulings provide.71 Arbitral decisions are not published, and in some cases the
arbitrator is not required to give the parties a written rationale for its decision.
Consequently, even the parties to the dispute may not understand how to govern
their conduct in the future, to avoid further disputes. This is unfortunate, because
space law is a relatively new field with many unsettled questions, where legal
opinions would be especially valuable.
These drawbacks can only be remedied through the voluntary action of the
arbitral institutions. But the remedies are simple, and would seem to be in the
institutions' best interest, because the most accommodating organizations will
receive the most business.
Institutions could begin by specifically defining space law disputes as a category

of claims which they will accept for arbitration. They could also develop a list of
arbitrators with expertise in space law, to assist parties in selecting arbitrators.
Finally, these institutions could establish a procedure for the publication of legal
findings which would preserve the privacy and anonymity of the parties, while still
providing non-binding precedents for the aerospace community.
Finally, the author recommends that the United States amend the Federal
Arbitration Act72 to specify that the Act applies to disputes arising in outer space.
Conclusion
There is much that the United States can do to encourage private activities in
Outer Space. A treaty which further defines the extent of national jurisdiction in
outer space is a predicate to any other treaties and national legislation in the field
of space law. The next highest priority should be a treaty on real property rights,
followed by a mining treaty, and a salvage treaty, in decreasing order of
importance. All of these treaties will require implementing national legislation.
The real property legislation can be modeled after the Homestead Act of 1862.
The mining legislation can be modeled after the General Mining Law of 1872.
Salvage legislation will probably have to compile and distill the various statutes
and case law precedents which have accrued over many years. In addition, the
United States should update the jurisdiction provisions in 18 U.S.C. § 7(6) and
7(7), and exclude from taxation all profits derived from activities in outer space.
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space Including the Moon and Other Celestial Bodies , done Jan. 27, 1967, 18 U.S.T. 2410,
T.I.A.S. No. 6347, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).
2. " Convention on International Liability for Damage Caused by Space Objects ", done Mar.
29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762 (entered into force Oct. 9, 1973).
3. Charter of the United Nations and Statute of the International Court of Justice, done Jun. 26,
1945, (entered into force Oct. 24, 1945).
4. H Baker , 1989, " SPACE DEBRIS: LEGAL AND POLICY IMPLICATIONS ", 61-71.
5. - See, e.g. - Hall , 1967, " Comments on Salvage and Removal of Man-Made Objects from
Outer Space ", in PROC. NINTH COLLOQUIUM ON THE LAW OF OUTER SPACE 135 -
and- Schwetje , 1987, " Space Law: Consideration for Space Planners ", 12 RUTGERS
COMPUTER and TECH. L.J. 245.
6. U.S. Space Command, Telephone conversation with Public Affairs Office, Febraury 20, 1992.
Notes on file with author.
7. H Baker , supra note 4.
8. H Baker , supra note 4.
9. Hall , supra note 5.
10. See H Baker , supra note 4.
11. Cepelka and Gilmore , " Application of General International Law in Outer Space ", 36 J.
AIR L. and COM. 58 (1970).
12. Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the
Exploration and Use of Outer Space, U.N. Doc. A/AC. 105/L.2 (1962); U.N. Doc. A/.5182,
Annex 3 (1962).
13. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, CIVILIAN SPACE POLICY
AND APPLICATIONS 349, 350 (1982).
14. U.S. Draft Declaration of Principles Relating to the Exploration and Use of Outer Space, U.N.
Doc. A/C.1/881 at 23, art. 6 (1962).
15. Christol , " The Common Heritage of Mankind Provision in the 1979 Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies ", 14 INT'L LAW. 429 (1980).
16. OFFICE OF TECHNOLOGY ASSESSMENT, supra, note 13.
17. Reprinted in IV UNITED STATES SPACE LAW: NATIONAL and INTERNATIONAL
REGULATION § II.A.22(f) (S. Gorove ed.).
18. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies , U.N.
Doc. A/AC.105 L.113/Add.4 (1979).
19. Convention on the Law of the Sea, U.N. Doc. A/CONF. 62/122 (1982).
20. Dubner, 'Recent Developments in the Law of the Sea', 33 INT'L LAW. 627, 628-29 (1999).
21. "Antarctica's Environmental Protocol", 1998 COLO. J. INT'L ENVTL. L. and POL'Y 119
(1998).
22. Goldman, Settlement and Sovereignty in Outer Space, 22 UNIV. W. ONTARIO L. REV. 156,
166 (1984).
23. Judgment in the Case Concerning the Legal Status of Eastern Greenland (Den. v. Nor.), 1933
P .C.I.J., Ser. A/B, No. 53, at 45-46 [hereinafter cited as Eastern Greenland Case].
24. 30 U.S.C. §§ 21-24, 26-30, 33-35, 37, 39-42, 47.
25. Cole v. Ralph, 252 U.S. 286 (1920).
26. Rummell v. Bailey, 7 Utah 2d 137, 320 P .2d 653 (1958).
27. Dallas v. Fitzsimmons, 137 Colo. 196, 323 P .2d 274 (1958).
28. Berto v. Wilson, 74 Nev. 128, 324 P .2d 843 (1958).
29. Fiske, 'Pedis Possessio: Modern Use of an Old Concept', 15 Rocky Mtn. Min. L. Inst. 181,
215-16 (1969).
30. 30 U.S.C. §21(a).
31. G.C. Coggins and C.F. Wilkinson, Federal Public Land and Resources Law 334, 335 (1981).
32. 30 U.S.C.A. §22 (emphasis added).
33. - See e.g. - 36 C.F.R. Part 228 (Forest Service regulations); 43 C.F.R. Groups 3000-3800
(Bureau of Land Management regulations); 43 U.S.C.A. §270-312, 315b, 315i, 661, 664-65,
687b-2, 869, 869-1, 931c, 934-39, 942-1 through 942-9, 943-44, 946-59, 961-70, 1701-02,
1711, 1722, 1731-48, 1753, 1761-71, 1781-82 (Federal Land Policy and Management Act of
1976); 30 U.S.C.A. §§601, 603, 611-15 (Surface Resources Act of 1955); 30 U.S.C.A. §§521-
31 (Multiple Mineral Development Act); 30 U.S.C.A. §§1201, 1202, 1211, 1221-29, 1231-43,
1251-79, 1281, 1291-1309, 1311-16, 1321-28 (Surface Mining Control and Reclamation Act
of 1977).
34. U.S.C.A. §§530, 1001-25 (Geothermal Steam Act of 1970).
35. G.C. Coggins and C.F. Wilkinson, supra note 31.
36. 30 U.S.C.A. §§351-59.
37. G.C. Coggins and C.F. Wilkinson, supra note 31, at 397-400.
38. Seanor, '$1 billion Ruling', ABA J., October 1990, at 22.
39. Seanor, 'The Case with the Midas Touch', ABA J., May 1990, at 51.
40. Columbus-America Discovery Group, Inc., v. The Unidentified, Wrecked and Abandoned
Sailing Vessel, S.S. Central America, In Rem, 1989 AMC 1955, 1956 (1989); I.d. at 53-54.
41. Columbus-America Discovery Group, Inc. v. The Unidentified, Wrecked and Abandoned
Sailing Vessel, In Rem, 742 F. Supp. 1327, 1332 (E.D.Va. 1990); Frantz, 'Salvage of
Steamer's Gold Hits Rough Seas', L.A. Times, April 3, 1990, at A1, Col. 1.
42. Seanor, supra note 38, at 23.
43. Frantz, 'Salvage of Steamer's Gold Hits Rough Seas', L.A. Times, April 3, 1990, at A1, Col. 1.
44. I.d., at A16, Col. 1.
45. Frantz, supra note 43, at A16, Col. 1 - A17, col.1; Seanor, supra note 38, at 23.
46. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1988).
47. H Baker , supra note 4 -and- DeSaussure , 1978, " An International Right to Reorbit Earth
Threatening Satellites ", II ANNALS AIR and SPACE L. 383.
48. - E.g. - DeSaussure , " The Application of Maritime Salvage to the Law of Outer Space ", in
PROC. TWENTY EIGHTH COLLOQUIUM ON THE LAW OF OUTER SPACE, at127 (1986);
Note, Space Salvage: A Proposed Treaty Amendment to the Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects Launched into Space, 26 VA.
J. INT'L L. 965 (1986) -and- Wanland , 1985, " Hazards to Navigation in Outer Space: Legal
Remedies and Salvage Law ", 1 J. ASTROLAW 1.
49. U.S. Space Command, supra note 6. -and- Smith and Lopatkiewicz , " Satellite Recovery:
A Lawyer's Perspective ", 2(3) AIR and SPACE LAW. 1 (1985).
50. "The Blackwall", 77 U.S. 1 (1868), quoted in Wanland , supra note 48.
51. M Norris, 3A BENEDICT ON ADMIRALTY §§ 24, 157-58 (7th ed. 1991), citing 46 U.S.C. §
729; see also Convention for the Unification of Certain Rules with Respect to Assistance and
Salvage at Sea, done Sep. 23, 1910, 37 Stat. 1658 (1913), T.S. 576, 212 C.T.S. 187, 1
Bevans 780; International Convention on Salvage, done April 28, 1989, reprinted in M
Norris at Appendix B-20.
52. "The Clarita and the Clara", 90 U.S. 1 (1874).
53. - See, e.g. -, Convention for the Unification of Certain Rules with Respect to Assistance and
Salvage at Sea, supra note 52.
54. "The Blackwall", supra note 51.
55. DeSaussure , 1981, " Maritime and Space Law, Comparisons and Contrasts (An Oceanic
View of Space Transport) ", 9 J. SPACE L. 93 (1981).
56. R Bender, UNPUBLISHED CLASS NOTES Southwestern School of Law, Los Angeles,
California, Pages 601 - 610 (1990, copy on file with the author).
57. M Norris, supra note 52.
58. M Norris, supra note 52.
59. - See, e.g. - 'Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel',
408 F.Supp. 907, 1976 A. M .C. 703 (S.D. Fla. 1976); aff'd 569 F.2d 330, 1978 A. M .C.
1404 (5th Cir. 1978).
60. Schwetje , 1976, " Space Law: Considerations for Space Planners ", 12 RUTGERS
COMPUTER and TECH. L.J. 245 (1987); -see also, e.g.-, Foreign Sovereign Immunities Act
of 1976, 90 Stat. 281 (1976), 28 U.S.C. § 1330 et. seq. (1988).

61. Hall , 1967, " Comments on Salvage and Removal of Man-Made Objects from Outer Space
", in PROC. NINTH COLLOQUIUM ON THE LAW OF OUTER SPACE at Page 135.
62. Schwetje , supra note 61.
63. Lutz, 'Perspectives on the World Court, the United States, and International Dispute
Resolution in a Changing World', 25 INT'L LAW 675, 678 (1991) and citations therein.
64. H L Van Traa-Engelman, 1989, " Commercial Utilization of Outer Space - Legal Aspects ",
253.
65. Mangoldt , " Methods of Dispute Settlement in Public International Law ", in 'Settlement of
Space Law Disputes: The Present State of the Law and Perspectives of Further
Development', 15, 17 (K H Bockstiegel ed. 1980), cited in i.d.
66. Eigenbrodt , 1989, " Out to Launch: Private Remedies for Outer Space Claims ", 55 J. AIR
L. and COM. 185, 219-21.
67. - See - II UNITED STATES SPACE LAW: NATIONAL and INTERNATIONAL REGULATION §
1.A.5 (S. Gorove ed.).
68. Bockstiegel , 1992, " Developing a System of Dispute Settlement Regarding Space Activities
", PROC. 35th COLLOQUIUM ON THE LAW OF OUTER SPACE, at [first page of article].
69. De Ly, 'The Place of Arbitration in the Conflict of Laws of International Commercial Arbitration:
An Exercise in Arbitration Planning', 12 NW. J. INT'L L. and BUS. 48, 55, 80 (1991).
70. Rutherford, 'Back to the Future', 140 NEW L. J. 1600, 1601 (1990).
71. 9 U.S.C. §§ 201-208 (1988), enacted Jul. 31, 1970 (84 Stat. 692).
W N White, 15 March 2001, "The Legal Regime for Private Activities in Outer Space", Presented at "Space: The Free Market Frontier ", 15
March 2001. Published by the Cato Institute with permission. Released to the Cato Institute in all forms. Copyright 2001 by Wayne N White ,
Jr..
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Bibliographic Index References and Referring Papers Printable Version

Claims may be asserted on behalf of corporations or individuals by their

Space Debris and Contamination

the environment of the Earth resulting from the introduction of extraterrestrial

In his book SPACE DEBRIS: LEGAL AND POLICY IMPLICATIONS , Howard

The next issue is whether operational, fragmentation and microparticulate debris

Other legislation worthy of note includes 25 U.S.C. § 863(d) [Internal Revenue

The Space Station Agreement

Jurisdiction: The 1998 Agreement Among the Government of Canada,

Liability: Article 16 of the Agreement establishes a cross-waiver of liability for

Criminal Jurisdiction: Article 22 provides for criminal jurisdiction. Partners have

In a case involving misconduct on orbit that: (a) affects the life or

Trends in International Law

international community provide insight into other nations' developing views on

In 1979 U.N. representatives completed the Agreement Governing the Activities

The contemporaneously negotiated Convention on the Law of the Sea,

In contrast, the more recent Protocol on Environmental Protection to the Antarctic

The Outer Space Treaty : Amend, Withdraw or

Regardless of whether the prohibition of territorial sovereignty has actually

Recommendations for Further Development of

Real Property Rights

because such rights derive from territorial sovereignty, which is prohibited by

Treaty on Jurisdiction and Real Property Rights in Outer Space

At the International Institute of Space Law annual Colloquium in Rio de Janeiro

lands. Miners' prospecting activities are protected by the case-law doctrine of

claim of the first on-the-ground locator using a geiger counter (radiometric

Unfortunately, Columbus America had to go to court to quiet conflicting claims to

Recommendations: Extraterrestrial miners will face a situation similar to that

When so defined, salvage is an attractive prospect for extraterrestrial operations.

Historically, the international law principle of sovereign immunity has precluded

Space salvage should be predicated on similar notions of jurisdiction. Only

As set forth above, the Liability Convention provides dispute resolution

In the absence of an agreement establishing binding procedures for the field of

In the broader field of international disputes, most private parties prefer

is confidential. It allows parties to select an arbitrator that they view as impartial,

International arbitration does have its drawbacks, however, particularly as a

Institutions could begin by specifically defining space law disputes as a category

of 1976, 90 Stat. 281 (1976), 28 U.S.C. § 1330 et. seq. (1988).

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