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Moon for Sale Moon for Sale A study into the potential of allowing property rights of outer space through a specialized UN agency offering leasehold agreements, an independent authority providing permits or a self regulating council of space faring states and corporations for improving the protection, exploration and exploitation of outer space. By Daan Valkenburg Masterthesis Environmental Law Supervision by F.M. Fleurke University of Tilburg 2011 Supervision by Prof. C.J. Bastmeijer Preface This thesis could not have been completed without the cooperation of others. My supervisors, Floor and Cees, continued their supervision throughout their summer vacation, enabling me to continue my work, instead of having to pause in wait of feedback. But also this thesis, because of the chosen approach, relied on replies to questionnaires and participation in interviews. Out of all the responses I got to my questionnaires I would like to thank in particlar Dr. J. Rummel (COSPAR), and Jean- François Mayence (UNCOPUOS), for taking the time to reply to my questionnaire personally. I would also like to thank Prof. Dr. S.E. Bartels, Prof. Mr. Dr. R.F.H. Mertens and Drs. T.L. Masson- Zwaan, for making time available to be interviewed. Their participation has proven invaluable for the creation of this thesis. I would also like to thank my girlfriend Mickey, for her unrelenting support and patience as I fortified myself behind my computer, even helping me find a new laptop as my old pc crumbled under the workload at, of course, the worst possible moment. Most of all though I want to thank her for her wisdom in dragging me off to Athens for a week to clear my head and catch my breath. If it weren’t for you, we would have probably spend our summers on our own, rather then together. Last but not least I would like to thank Eric and Emile for keeping their promise in offering feedback on my final draft concept, even after it became apparent to them that the seize of this task was bigger than expected. Although I attempted to write this thesis to be accessible to a broad audience, by providing examples and explaining key concepts, this thesis still does not read like a novel. At times the learning curve can be quite steep and I advise casual readers to bookmark the lists of acronyms and key concepts for periodic reference. For non casual readers, with at least some experience on the fields covered in this thesis, some parts may seem tedious. I would like to warn against this, because certain key concepts will be used on this thesis in an alternative way. These alternative approaches to concepts were necessary to allow their use in the field of outer space law, where their origins lie in describing terrestrial systems. Finally I would like to welcome all readers that at any time feel the desire to comment on this thesis to do so. We all have the privilege to live in times where the realization of some of mankind’s boldest dreams seem closer than ever and I would therefore like to contribute in sparking and maintaining the debate on this subject. We are literally collecting but sea shelves and pebbles that seem more beautiful than others, on the shores of an ocean of wisdom. I welcome your pebbles and sea shelves on the Reflections on Use of the Outer Space Environment group which I created for this purpose on LinkedIn. For those reading in print, the adres is http://www.linkedin.com/groups/Reflections-on-Use-Outer-Space-3967820?trk=myg_ugrp_ovr. While studying some of the comments on the last 50 years of space legislation, I have found that much of this field is so new and unknown that academic findings at times seem to rely more on the preconceptions of the author than the subject matter at hand. Perhaps more can be learned in studying the way mankind looks at outer space, than studying outer space itself. Certainly while writing this thesis I was often reminded of my childhood debates on cloud formations, that were clearly more rabbit shaped than horse shaped. But perhaps more so because I had a pet rabbit than their actual appearance. 3 Table of contents Preface p. 3 Summary p. 6 1. Introduction p. 7 1.1 Introduction p. 7 1.2 Research questions p. 8 1.3 Research methodology p. 9 1.4 Acronyms used p. 10 1.5 Terminology used p. 11 2. The Earth environment p. 12 2.1.The history of the Earth environment p. 12 2.2 The concept of an Earth environment p. 12 2.3 The environment in this thesis p. 13 2.4 History of property rights p. 14 2.5 Property rights in this thesis p. 14 3. The Earth environment p. 15 3.1 Environmental resources p. 15 3.2 Principles in environmental treaties p. 15 3.2.1 Precautionary Principle p. 16 3.2.2 Preventive Approach p. 16 3.2.3 Common Heritage of Mankind p. 16 3.2.4 Benefit of all Mankind p. 16 3.2.5 International regimes p. 17 3.2.6 (Extra-)Terrestrial Jurisdiction p. 17 3.2.7 Property rights p. 17 3.2.8 Polluter pays principle p. 18 3.3 Protection from environmental principles p. 18 4. The outer space environment p. 20 4.1 Environmental resources p. 20 4.2 Outer Space Treaties p. 20 4.2.1 Outer Space Treaty p. 20 4.2.2 Moon Treaty p. 21 4.2.3 Liability Convention p. 21 4.2.4 Registration Convention p. 21 4.2.5 The Rescue agreement p. 21 4.2.6 The UN resolutions p. 22 4.3 Environmental Principles in Treaties p. 22 4.3.1 Fault liability p. 22 4.3.2 Common Heritage of Mankind p. 22 4.3.3 Benefit of all mankind p. 23 4.4 Flaws in the protection of the outer space environment p. 23 4 5. Property rights p. 24 5.1 The potential of other approaches p. 24 5.2 Property right approach as most potent p. 26 5.3 Property right as environmental protection p. 27 5.4 Possibilities and risks of property rights p. 27 5.5 Current property rights in space p. 28 5.6 Property rights investigated in this thesis p. 30 5.6.1 The Questionnaires p. 30 5.6.2 Property right type A p. 30 5.6.3 Property right type B p. 31 5.6.4 Property right type C p. 31 6 Potential and risks of property right types p. 33 6.1 Possible risks and benefits to the protection of outer space p. 33 6.1.1 Possible risks and benefits by property right a p. 33 6.1.2 Possible risks and benefits by property right b p. 34 6.1.3 Possible risks and benefits by property right c p. 35 6.2 Possible risks and benefits to exploration and cultivation of outer space p. 35 6.2.1 Possible risks and benefits by property right a p. 35 6.2.2 Possible risks and benefits by property right b p. 36 6.2.3 Possible risks and benefits by property right c p. 36 6.3 Violation of current body of space law p. 36 6.3.1 Violation of current body of space law by property right type a p. 36 6.3.2 Violation of current body of space law by property right type b p. 37 6.3.3 Violation of current body of space law by property right type c p. 37 7. Conclusions, discussions and recommendations p. 38 7.1 Conclusions p. 38 7.1.1 The current body of space law needs improvement p. 38 7.1.2 Property rights offer a potential for improvement p. 38 7.1.3 Recommendation of property right type b p. 38 7.2 Discussion p. 39 7.3 Possibilities for future research p. 39 Appendix A – Bibliography p. 40 Appendix B – Questionnaire p. 44 Appendix C – Dr. Rummel questionnaire p. 48 Appendix D - Interviews p. 49 5 Summary Throughout history mankind has relied on his surroundings for resources to sustain him and allow for his development. At times where these resources grew scarce, conflict arose to determine access to finite resources. As mankind’s dominance over the earth grew, so did his dependence on an increasing number of resources. To reduce damage to vital resources through pollution, the destruction caused by conflict over finite resources and to act in line with the responsibilities that come with being the dominant species on earth, mankind has sought to regulate the way we use our environment. As mankind prepares to add outer space to his environment, regulations on how the outer space resources may be used become important. By comparing the way the protection of the earth environment has evolved to that of the outer space environment, flaws become apparent. Depending on definitions used, international cooperation on earth has produced anywhere from five hundred to over a thousand treaties that created and applied the precautionary principle, preventive approach, polluter pays principle, common heritage of mankind, benefit of all mankind, various international environmental regimes and courts with international jurisdiction to ensure environmental protection. The five treaties governing outer space, only four of which have been ratified by a sufficient number of countries to be qualified as customary international law, rely on fault liability and the application of common heritage of mankind and benefit of all mankind to protect the outer space environment. This difference can be explained through the fact most international environmental agreements were formed after the Stockholm convention of 1972, whereas the last outer space treaty was created in 1979.
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