From Ad Astra January-February 2001
by Dana J. Johnson
As some experts have noted, the United States has great potential to shape the international environment for space commerce, but its effectiveness has not lived up to that potential. The U.S. government and industry seem largely unaware that they need to or can shape this environment, particularly in the context of foreign policy and national security goals, shared or competing interests with other spacefaring nations, and the larger context of international non-governmental activities (e.g., the United Nations). In a complex, fragmented government policy process, there is a tendency to treat complex dual-use or cross-sector issues, such as missile proliferation and commercial launch, and tools, such as export controls, in isolation or in ad hoc combinations. In contrast, companies making investment decisions need to have an integrated assessment of the business environment for a particular venture (such as potential markets, competitors, and regulations). These different perspectives result in potential conflicting responses toward public-private partnerships to achieve common goals, uncertain implementation strategies that may enhance commercial competitiveness yet adversely affect national security interests, or vice versa, and creating political uncertainty and policy risk for commercial industry.
The relationship between the U.S. government and private industry has changed over the years from one of market dominance by the government to that of the government as a minor customer relative to the larger market. The complexity of the relationship is also increased by the multinational nature of the commercial space industry. Consequently, industry is not bound to satisfy U.S. governmental requirements if it has alternative customers who do not impose constraining regulatory and acquisition processes. In a broad sense, it is the government’s responsibility to identify and offer incentives for industry to provide support and meet governmental requirements, not the reverse. While the U.S. government talks about partnerships with industry, becoming more “commercial-like” in its acquisitions, and protecting U.S. economic interests in space, the private sector reacts with anything from polite skepticism to avoidance. The government must plan for worst-case events while the private sector does not see the same threats or justifications for military “protection.”
These are fundamental differences in views that help shape the overall relationship between the U.S. government and commercial industry, help identify respective roles for both government agencies and industrial sectors, and have implications for space policies, regulations, and shaping the international environment for space commerce. As with other areas of foreign policy and trade, the United States will be engaged in cooperation and competition with other space-faring nations on a range of space-related issues. Space commerce cannot be separated from these cooperative and competitive activities. It is this larger environment of crosscutting issues and balance between national security interests and commerce that needs to be addressed in a space policy context across agencies and across borders, not in isolated agency decisions and actions.
What can NSS members do to help overcome these barriers? They can advocate the re-establishment of a viable White House-level organization and process that will develop a policy framework and strategy for implementing the goal of human missions beyond Earth orbit. This goal cuts across more than NASA activities, and while NASA will likely provide the lead in implementing this goal, other agencies have capabilities that may contribute to achieving the goal. Other aspects to achieving this goal include:
- Focusing debate on driving down the costs of space transportation so that the total costs of sending humans to explore new planets is affordable and the means to get there are technologically feasible, reliable, and accountable, all the while avoiding potential new monopolies and inhibiting commercial competition;
- Advocating to Congressional representatives the urgency and importance of pursuing this goal with not just election campaign rhetoric but through changes to funding priorities and allocations;
- Encouraging a stable and supportive policy environment for encouraging industry confidence in the government’s ability to implement needed policy and regulatory reforms that contribute to developing a viable market for related high-payoff technologies and systems; and
- Recognizing and protecting private property rights, claims, and titles beyond the Earth. These are necessary for when it comes time to discuss approaches to governance and protection of human settlements beyond the Earth.
NSS members can help by actively promoting a sensible approach to these issues as a way to help shape the international environment favorably and to lay the foundation for human activities in space in the future.
Dana J. Johnson, Ph.D., is a Member of the NSS Board of Directors and participates in the NSS Policy Committee. She is a space policy analyst for a research firm in the Washington, D.C., area and resides in Alexandria, Virginia.
From Ad Astra January-February 2001
by Glenn H. Reynolds
Fifty years ago, the legal journals were abuzz with questions of space property rights. John Cobb Cooper, a professor at Princeton’s Institute for Advanced Study, was asking how far property rights on Earth reached. Under the old Roman law doctrine of usque ad coelum (literally, “to the heavens”), property rights on Earth reached infinitely upward, with each property owner possessing a wedge extending downward to Earth’s core, and upward to the limits of the universe. National sovereignty was treated after the same fashion, with national boundaries forming a similar sort of infinite searchlight-like fan into the heavens. Similar analyses by United Nations (UN) lawyer (and later Columbia law professor) Oscar Schachter and others suggested that in the absence of a treaty, property rights and national sovereignty would indeed be treated this way.
This posed certain conceptual problems: for example, would I own entire galaxies, at least for the brief time that my “beam” of property rights covered them before the Earth’s rotation moved it onward? But the most obvious problem had to do with the Moon. Indeed, it was the thinking behind Cooper’s article that inspired Robert Heinlein’s famous story The Man Who Sold the Moon (1950).
Distant galaxies were one thing, but the Moon was right overhead. Many believed (perhaps wrongly, in light of orbital dynamics) that it would make an ideal missile base. Others saw it as a potential treasure trove of minerals and energy, and as a jumping-off point for further exploration of the solar system. Still others felt that its possession would confer unanswerable prestige on whichever sort of nation — capitalist or communist — got there first.
Thus was bred the “space race” that occupied the late 1950s and the 1960s, culminating in two things: the Outer Space Treaty of 1967, and the American Moon landing of 1969. The second of these was clearly a triumph. The status of the first is open to debate.
Despite their many deep divisions, the Soviet Union and the United States agreed on two things: first, that the usque ad coelum approach, which granted ownership and sovereignty over the Moon to equatorial residents and nations (categories that pretty much left out the United States and the Soviet Union), was no good; and second, that each was more worried about the other getting there first than either was anxious to get there first itself.
The result, not surprisingly, was a treaty whose treatment of sovereignty and property rights answered those concerns. Under the 1967 Outer Space Treaty, nations may not have sovereignty over the Moon or other celestial bodies. Article II of the Treaty prohibits “national appropriation” of the Moon or other celestial bodies, whether by claim of sovereignty or by other means. This is, in a way, a sort of hedge. While the United States and the Soviet Union lost the opportunity to claim the Moon if they could get
there first, they also lost the need to worry about what would happen if the other got there first.
Nonetheless, there was a very definite downside to the Outer Space Treaty. It is no coincidence that space budgets in both nations began dropping as soon as the ink was dry. (This is no exaggeration — just look at any graph of American and Soviet space spending over time and you’ll see a sharp peak in early-to-mid 1967). And why not? Before the treaty, it was “to the victor belong the spoils.” After the treaty, it was “to nobody belong the spoils” — at least where national sovereignty was concerned. In short, we have gone from fears of an unseemly scramble for Moon colonies to, well, fears that there won’t be an unseemly scramble for Moon colonies.
Where individual property rights were concerned, as opposed to national claims of sovereignty, the Outer Space Treaty did much less. In fact, it did nothing at all. Part of this was simply the result of the zeitgeist — at the time, it was largely assumed that space activity was, and would always remain, a near-monopoly of national governments. Part was also the desire of some treaty proponents to leave the way open for private enterprise in the future. For whatever reason, the treaty is silent on the question of private property in space resources, though attorney and NSS Board Member Wayne White has argued that other provisions of the 1967 treaty protect a kind of quasi-property right.
Nonetheless, the Outer Space Treaty’s treatment of space property rights is largely negative. Private property rights are permitted under the treaty, but they are not defined, nor are they explicitly protected. This tends to discourage investors.
Nothing discourages investors like the threat of confiscation, though, and that was what would-be space entrepreneurs faced next, in the form of the 1979 Moon Treaty.
The Moon Treaty may be viewed as the last of the “first generation” space treaties. Its chief purpose was to address a question left open by the 1967 Outer Space Treaty: the status of private property rights. The 1967 Outer Space Treaty forbids the assertion of governmental rights over the Moon and other celestial bodies in Article II, which provides that: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
“National appropriation,” however, seems a far cry from private appropriation. Although initially some commentators argued that the Outer Space Treaty forbade even private property rights, a near-consensus soon emerged that “national appropriation” means just what it says: national appropriation. The status of private appropriation by individuals and corporations was thus unsettled. Presumably, not being forbidden by the treaty, such appropriation remained permissible so long as other provisions of the treaty were obeyed.
This was disturbing to those thinkers, chiefly representing less-developed or “Third World” nations, who feared that a commercial space race would exacerbate earthly disparities in wealth, since it would be a race in which only citizens of the technically advanced countries would qualify for the starting line. Many of these thinkers were adherents of, or at least influenced by, the theories of the “New International Economic Order,” a school of economics that blamed Western exploitation for many aspects of global wealth discrepancy, and that promoted interventionist and redistributionist economic policies as a means of reducing or eliminating wealth differences among Western and non-Western nations.
This group’s thinking was reflected in the Moon Treaty, which not only reaffirmed the Outer Space Treaty’s principle barring national appropriation, but went much further. Article 11(1) of the Moon Treaty provides that: “The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in Paragraph 5 of this Article.”
Article 11(3) provides that: “Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become the property of any state, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in Paragraph 5 of this Article.”
And Article 11(5) provides that: “States parties to this agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with Article 18 of this Agreement.”
Article 11(7) went on to provide a number of considerations for the distribution of space resource, with a strong focus on “rational management” and “equitable distribution,” terms that most Western readers interpreted as code words mandating redistribution of wealth from wealthier to less wealthy countries through giving less developed countries a share of the proceeds from any space exploitation conducted by the wealthy.
The U.S. Reaction
Unfavorable circumstances led to a rough reception for the Moon Treaty in the United States. At hearings held in July of 1980, witnesses from a wide range of groups criticized the treaty. These groups included the L5 Society (a pro-space group since merged into the National Space Society), various aerospace and mineral companies, and even B’nai B’rith.
The substance of the complaints was that the Moon Treaty’s “common heritage” regime would serve as a substantial disincentive to development. These concerns were severe enough to motivate not only space advocacy groups, but companies such as Kennecott Minerals and United Technologies, and industry groups such as the American Mining Congress and the Aerospace Industries Association of America to oppose the treaty. There was also substantial grassroots opposition to the treaty.
As was predicted by representatives of the L5 Society during the Senate hearings, the United States’ failure to ratify the treaty meant that no space power wound up ratifying it. Thus, although the Moon Treaty has entered into force among its signatories, it is of no real significance in establishing international space law. Yet, despite the lack of ratification, no space-faring nation has ever publicly challenged this treaty.
While the Moon Treaty would no doubt be bad for space development if it were in force as to the major space powers, its absence is not a sufficient condition for space development. As the economic problems following the demise of the former Soviet Union illustrate, the mere absence of regulation is not enough to encourage investment: there must be positive legal protection for property rights. It thus seems clear that lunar development requires protection of property rights. Such protection is difficult to achieve in the absence of some sort of legal regime. And although it is conceivable that an appropriate regime might be provided via a unilateral approach employing only the municipal (domestic) law of individual nations, that is very much a second-best solution.
Rewriting the Moon Treaty is not out of the question. It is pretty generally considered a failure, even by its supporters. And by its own terms, it comes up for periodic review by the United Nations General Assembly. The first such review was scheduled to take place ten years after its entry into force. Although there was then no great interest among UN members in revisiting the Moon Treaty, a strong proposal for substantial reform might generate such interest. Space capability is no longer a superpower monopoly. In fact, several “Third World” opinion leaders, such as India and China, now have credible space programs. So there may be a market for new ideas in this area.
An entirely new treaty, negotiated among the major space powers, is another possibility. This avoids any political difficulties associated with drastic modification of a treaty that is already in force, and allows the nations that actually have something at stake to take the lead. Such a limitation would probably allow for faster negotiations, and would substantially reduce “free rider” and “holdout” problems that often plague negotiations in the United Nations Committee on the Peaceful Uses of Outer Space, where many nations with little direct stake are involved in a consensus-based system.
Finally, of course, it is possible that a unilateral regime, based on the municipal law of individual spacefaring nations, could provide the necessary protection, at least in the early days of lunar resource development. But such an approach has several drawbacks. First, it carries with it increased potential for conflict among nations. Second, it might seem to lack political legitimacy in the world community. And third, the fear of hostile diplomatic, economic, or military action by other nations might undermine the very confidence and stability that a resource regime is designed to create. These problems are not insuperable, and there is some precedent for such an approach, but the problems with unilateralism are sufficiently great that it should be regarded as a last resort.
Regardless of which approach is taken, some thought needs to be given to the question of how any regime should be structured. The National Space Society has taken the position that early development of space resources is vital to the future of humanity for economic, environmental, and spiritual reasons. This produces a strong bias in favor of a system that produces early development.
Thus, a “claims” regime, in which private parties are rewarded for discovering and exploiting lunar resources, would make more sense than a regime based on allocation by a centralized authority. Though such an argument might have been radical in the 1970s, it is founded on economic principles that are now unexceptionable. The precise details for implementing such a system are beyond the scope of this article, although the principles set out above provide substantial guidance.
Just as various technological hurdles must be overcome first, it is certain that we will not see development of lunar resources without an appropriate legal regime. The Moon Treaty’s “common heritage” regime has proven thoroughly unsatisfactory, and so will any regime based on similar principles. Fortunately, it seems clear that the most desirable regime for developing lunar resources, one based on private property rights with minimal governance, is also the approach that is likely to prove most acceptable to spacefaring nations.
It is my hope that the spacefaring nations will seize the opportunity to work out such a regime in the next few years. We are already beginning to see the very first stirrings of interest in commercial exploitation of the Moon, and by the early part of the next decade we are likely to see more. As interests become more concrete, negotiation will become more difficult. Today’s situation makes agreement on general principles easier. As the parties are able to make out their future interests with greater clarity and specificity, the task of negotiation is likely to become more difficult.
Glenn H. Reynolds, a member of the NSS Board of Advisors, is coauthor of Outer Space: Problems of Law and Policy (Westview, 1998).