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Journal of Space Law Volume 40 Number 1-2 2015-2016

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Journal of Space Law Volume 40 Number 1-2 2015-2016 Journal of Space Law Volume 40 Number 1-2 2015-2016 Articles The Exploitation of Asteroids and The Non-Appropriation Principle: Reflections on the nature of property rights in light of the US Space Resource Act of 2015 ............................................................................................Philip de Man Green for Liftoff: Structural Changes for Environmental and Economic Sustainability in Space Launching ............................................................................Justin Fisch Asteroid Mining and its Legal Implications.................................Devanshu Ganatra, Neil Modi Regulating the Void: In-orbit Collisions and Space Debris...........................Timothy G. Nelson Global Cap and Trade System for Space Debris: Putting a Price on Space Hazards ......................................................Anja Nakarada Pecujlic, Sarah Katharina Germann Effective Exercise of ‘In-space Jurisdiction’: The US Approach and the Problems it is Facing ....................................................................................Frans von der Dunk Commentaries The Legality of Mining Celestial Bodies New..................................................Thomas Gangale New Space Activities Expose a Potential Legal Vacuum............................Susan J. Trepczynski Book Reviews & Space Law Bibliography 61 1 to 40 -2 2 Vol. , No. 1 Journal of Space Law Pages 2013 JOURNAL OF SPACE LAW VOLUME 40, NUMBER 1&2 2015-2016 JOURNAL OF SPACE LAW UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. VOLUME 40 2015‐2016 NUMBER 1&2 Editor‐in‐Chief P.J. Blount, J.D., Ph.D. Executive Editor Andrea Harrington, J.D., L.L.M. Editing Staff Business Manager Michael Dodge, J.D., LL.M. Gwen May Founder, Dr. Stephen Gorove (1917-2001) Editor-in-Chief, Joanne Irene Gabrynowicz (2001-2013) Editor-in-Chief Emerita, Joanne Irene Gabrynowicz (2013 - ) All correspondence with reference to this publication should be directed to the JOURNAL OF SPACE LAW, University of Mississippi School of Law, 481 Coliseum Drive, University, Mississippi 38677; [email protected]; tel: +1.662.915.6857, or fax: +1.662.915.6921. JOURNAL OF SPACE LAW. The subscription rate for 2014 is $100 U.S. for U.S. domestic/individual; $120 U.S. for U.S. domestic/organization; $105 U.S. for non- U.S./individual; $125 U.S. for non-U.S./organization. Single issues may be ordered at $70 per issue. For non-U.S. airmail, add $20 U.S. Please see subscription page at the back of this Volume. Copyright © Journal of Space Law 2016. Suggested abbreviation: J. SPACE L. ISSN: 0095-7577 JOURNAL OF SPACE LAW UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. VOLUME 40 2015‐2016 NUMBER 1&2 CONTENTS Call for Papers ............................................................................................ iii Articles The Exploitation of Asteroids and The Non‐Appropriation Principle: Reflections on the nature of property rights in light of the US Space Resource Act of 2015 ................ Philip de Man 1 Green for Liftoff: Structural Changes for Environmental and Economic Sustainability in Space Launching ......................Justin Fisch 57 Asteroid Mining and its Legal Implications ...................................... Devanshu Ganatra, Neil Modi 81 Regulating the Void: In‐orbit Collisions and Space Debris ........................................................ Timothy G. Nelson 105 Global Cap and Trade System for Space Debris: Putting a Price on Space Hazards .......................................................... Anja Nakarada Pecujlic, Sarah Katharina Germann 131 Effective Exercise of ‘In‐space Jurisdiction’: The US Approach and the Problems it is Facing …. Frans von der Dunk 147 Commentaries The Legality of Mining Celestial Bodies New .................... Thomas Gangale 187 i New Space Activities Expose a Potential Legal Vacuum ............................................... Susan J. Trepczynski 215 Book Reviews Frans von der Dunk, ed., Handbook on Space (Edward Elgar Publishing 2015) ......... Mahulena Hofmann, Andreas Loukakis, Simona Spassova 233 Philip de Man, Exclusive Use in an Inclusive Environment: The Meaning of the Non‐appropriation Principle for Space Resource Exploitation (Springer 2016) .............................................. Christian J. Robison 249 Bibliography Space Law Bibliography ............................................................ P.J. Blount 253 ii CALL FOR PAPERS JOURNAL OF SPACE LAW UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. Volume 41 The LL.M. program in Air and Space Law at the University of Mississippi School of Law is delighted to announce that it will publish double-issue Volume 40, Issues 1 & 2 of the JOURNAL OF SPACE LAW in 2017. Authors are invited to submit manuscripts, and accompanying abstracts, for review and possible publication in the JOURNAL OF SPACE LAW. Submission of manuscripts and abstracts via email is preferred. Papers addressing all aspects of international and national space law are welcome. Additionally, papers that address the interface between aviation and space law are also welcome. Please email manuscripts and accompanying abstracts in Microsoft Word or WordPerfect to: [email protected] Or, alternatively, a hardcopy of the manuscript and abstract, along with a computer diskette containing them in Microsoft Word or WordPerfect format may be sent to: JOURNAL OF SPACE LAW P.O. Box 1848 University, MS 38677 1-662-915-6857 (office) 1-662-915-6921 (fax) The JOURNAL OF SPACE LAW will continue to accept and review submissions on an on-going basis. iii ARTICLES THE EXPLOITATION OF ASTEROIDS AND THE NON-APPROPRIATION PRINCIPLE: REFLECTIONS ON THE NATURE OF PROPERTY RIGHTS IN LIGHT OF THE US SPACE RESOURCE ACT OF 2015 Philip De Man* I. THE SPACE RESOURCE ACT AND THE INTERNATIONAL OBLIGATIONS OF THE UNITED STATES A number of recent initiatives revolving around the explora- tion and utilization of the Moon and asteroids, both public and pri- vate, have reintroduced space law doctrine to the pressing issue of natural resource appropriation.1 In direct response to the budding development of an American space mining industry, the US * Senior Researcher, Leuven Centre for Global Governance Studies, University of Leuven, Belgium; member of the official delegation of Belgium to the 55th Session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, 4-15 April 2016, Vienna. The opinions expressed in this article are the personal views of the author. 1 The most high-profile of these initiatives are Planetary Resources, www.plane- taryresources.com (last visited July 19, 2016), Deep Space industries, deepspaceindus- tries.com (last visited July 19, 2016), Shackleton Energy, www.shackletonenergy.com (last visited July 19, 2016), and Kepler Energy and Space Engineering, www.kesellc.com (last visited July 19, 2016). See also the “Asteroid Redirect Mission,” NASA, http://www.nasa.gov/mission_pages/asteroids/initiative (last visited July 19, 2016). 1 2 JOURNAL OF SPACE LAW [VOL. 40:1-2 adopted, in November 2015, the Commercial Space Launch Com- petitiveness Act.2 If primarily occupied with streamlining the US legal regime for commercial space launch activities, the act also in- cludes, at the very end, a brief title on Space Resource Commercial Exploration and Utilization (Space Resource Act). The historic significance of the Space Resource Act lies in the fact that it is the first legal instrument, at any level of governance, to explicitly grant property rights to private enterprises over re- sources extracted from asteroids and other celestial bodies. In par- ticular, the act provides that [a] United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with appli- cable law, including the international obligations of the United States.3 Previous versions of the act included a proposal for resolving civil action for relief from harmful interference, in case a US legal entity engaging in asteroid mining would suffer from such interfer- ence caused by another entity subject to American jurisdiction. In that case, it was argued that the court should find in favour of the plaintiff if it finds that the activity is “reasonable for the exploration and utilization of asteroid resources”, the plaintiff was first in time to conduct this activity and “acted in accordance with all existing international obligations of the United States.”4 The condition of respect for the existing international obliga- tions of the United States, retained in the aforementioned provision of the final version of the 2015 Act, complicates matters signifi- cantly in light of the current state of international space law and the ratification status of the Outer Space Treaty. Counting all ma- jor spacefaring actors among its signatories, the US, too, is held by 2 Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90 (Nov. 25, 2015). 3 Id. at Title IV, §402, proposed §51303 ‘Asteroid resource and space resource rights.’ 4 Sub (c) and (d) of §51303 of the proposed bill for an ASTEROIDS Act. Space
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