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Northumbria Research Link Northumbria Research Link Citation: Cheney, Thomas Eric Leslie (2020) Sovereignty, jurisdiction, and property in outer space: space resources, the outer space treaty, and national legislation. Doctoral thesis, Nothumbria University. This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/42999/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/pol i cies.html Sovereignty, Jurisdiction, and Property in Outer Space: Space Resources, the Outer Space Treaty, and National Legislation T EL Cheney PhD 2020 Sovereignty, Jurisdiction, and Property in Outer Space: Space Resources, the Outer Space Treaty, and National Legislation Thomas Eric Leslie Cheney A thesis submitted in partial fulfilment of the requirements of the University of Northumbria at Newcastle for the degree of Doctor of Philosophy Research undertaken in the Faculty of Business and Law January 2020 Page 1 of 342 Abstract Space resources and space property rights have long been popular topics. This interest has increased recently. The development of an embryotic space resources industry, and national legislation intended to foster it, has turned what had previously been a somewhat academic discussion about the true scope of the ‘freedom’ to use outer space and the limitations of the ‘non-appropriation principle’ into one of significance not just for outer space but the international order more broadly. There is an ambiguity at the heart of the Outer Space Treaty, it places the ‘freedom of use’ of outer space in the first article, its preamble talks of opening outer space for the human future, yet the non-appropriation principle potentially prevents all of that. In order for there to be a human future in outer space humanity needs to be able to make use of the resources in outer space, but if they cannot be ‘appropriated’ then that cannot happen. This thesis seeks to understand that contradiction and identify solutions. It examines the Outer Space Treaty as the foundational and fundamental core of the space governance regime but also seeks to place it and the concept of property rights in a wider context. Utilizing, treaties, laws, negotiating records, and secondary sources from a range of disciplines, this thesis will examine the seeming contradiction between being free to use something but not to appropriate it. It will find that it is possible to construct a property rights regime for space resources within the framework of the Outer Space Treaty. However, in order for that regime to be practically useful, it will require international cooperation and coordination. It will require positive action to achieve. The alternative is anarchy, the likes of which Article II of the Outer Space Treaty was intended to avoid. Page 2 of 342 List of Contents Abstract List of Contents List of Treaties, Legislation, Cases and UN Documents Acknowledgements Authors Declaration Chapter One: Introduction 1.1 Purpose of the Study 1.2 Background 1.3 Research Question and Hypothesis 1.3.1 First Research Question 1.3.2 Second Research Question 1.3.3 Third Research Question 1.4 Research Methodology 1.5 Intended Outcomes 1.6 Overarching Summary Chapter Two: Space Resource Activities 2.1 Introduction 2.2 A ‘Gold Rush’ in Space? 2.3 Considerations of Economic Viability and Equity 2.4 A Space Wilderness Reserve 2.5 Conclusion Chapter Three: Public International Law 3.1 Introduction 3.2 Special Regimes 3.3 Gaps and Silence 3.4 VCLT and Treaty Interpretation 3.5 Customary International Law 3.5.1 State Practice 3.5.2 Opinio juris 3.5.3 General Assembly Resolutions 3.5.4 Treaties 3.5.5 ‘Specifically Affected States’ and Time 3.5.6 ‘Modern Custom’ 3.5.7 ‘Instant’ Custom 3.5.8 ‘Grotian moment’ 3.6 Soft Law 3.7 Space resources and customary international law 3.8 Conclusion Chapter Four: Space Law Treaties 4.1 Introduction 4.2 The Outer Space Treaty 4.2.1 The Preamble 4.2.2 Article I 4.2.3 Article II 4.2.3 Article III 4.2.4 Article VI 4.2.5 Article VIII Page 3 of 342 4.3 The Moon Agreement 4.4 UNCLOS 4.4.1 Seabed Mining and the ‘Area’ 4.5 Conclusion Chapter Five: What is a Celestial Body? 5.1 Introduction 5.2 Defining a Celestial Body 5.3 Treaty Term 5.3.1 The Ordinary Meaning of ‘Celestial Body’ 5.4 Scientific Definitions 5.4.1 Planets 5.4.2 Moons 5.4.3 Small Solar System Bodies: Asteroids and Comets 5.5 Legal Definitions 5.5.1 Pop’s Four Approaches 5.5.2 Size 5.5.3 Moveable v Immovable 5.6 A definition of celestial body 5.7 Conclusion Chapter Six: History of Property 6.1 Introduction 6.2 Rome 6.3 Medieval Law 6.4 English Common Law 6.5 Property Revolution 6.6 Colonial Developments 6.7 Conclusion Chapter Seven: Property Theory 7.1 Introduction 7.2 Property as a ‘thing’ 7.3 John Locke and Property as a Natural Right 7.4 Positive Property or Bundle of Rights 7.4.1 Right to Exclude 7.4.2 Right to Use 7.4.3 Are All Sticks Equal? 7.5 Property and the State 7.6 Enforcement, the Rule of Law and the Value of Property Rights 7.7 Alternatives 7.7.1 Proudhon 7.7.2 Elinor Ostrom: Institutions for Governing the Commons 7.7.3 Stewardship 7.8 Conclusion Chapter Eight: Sovereignty and Jurisdiction 8.1 Introduction 8.2 Modern Sovereignty 8.3 Territory 8.4 Post-Modern Sovereignty? 8.5 Origins of Sovereignty 8.6 The Ocean 8.7 Jurisdiction in International Law Page 4 of 342 8.8 The Guano Islands Act 8.9 Conclusion Chapter Nine: Space Resource Activities and Space Law 9.1 Introduction 9.2 Relationship between International and National Law 9.3 US Law and Policy 9.3.1 ASTEROIDS ACT 9.3.2 Title IV CSLCA 9.3.3 American Space Commerce Free Enterprise Act 9.3.4 Space Force and President Trump’s Space Policy 9.3.5 International Law and the US Legal System 9.4 Luxembourg 9.4.1 Law on the Exploration and Use of Space Resources 9.4.2 International Law in Luxembourg 9.5 UNCOPUOS 9.6 The Hague International Space Resources Governance Working Group 9.7 Conclusion Chapter Ten: Conclusion 10.1 Overview 10.2 Research Questions 10.2.1 First Research Question 10.2.2 Second Research Question 10.2.3 Third Research Question 10.3 Solution 10.4 Further Work 10.5 Concluding Remarks List of References Page 5 of 342 Lies of Treaties, Legislation, Cases and UN Documents International Treaties Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 18 December 1979, entered into force 11 July 1984) 1363 UNTS 3 Charter of the United Nations Convention on International Liability for Damage Caused by Space Objects (adopted 29 March 1972, entered into force 1 September 1972) 961 UNTS 187 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) UKTS 67 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980), 1155 UNTS 331 Cases Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment, I.C.J. Reports 2007, p43 Arbitral Award of 31 July 1989, ICJ Reports 1991 p53 Avena and other Mexican Nationals (Mexico v US), ICJ Reports 2004, p12 Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, I. C.J. Reports 1985, p. 13 Eritrea/Yemen – Phase I: Territorial Sovereignty and Scope of Dispute, 1998 PCA Kasikii/Sedudu Islands (Botswana/Namibia), judgment, ICJ Reports 1999, p 1045 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race And to Nuclear Disarmament (Marshall Islands v India) (Dissenting Opinion of Judge Cancado Trindade) [2016] ICJ Report 321 Oil Platforms (Islamic Republic of Iran v United States of America), preliminary objections, judgment, ICJ Reports 1996, p 803 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J.
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