NEEP602 Course Notes (Fall 1997)
Resources from Space
Lecture #38 First, we kill all the lawyers!
Title: Legal Regimes for Space Enterprises - Background
(largely based on Bilder, et al., 1989)
Major Approaches to Implementation of a Lunar Enterprise
- Private Initiative (Lecture
#42) priority sequence
- Financial Environment
- Management Environment
- Regulatory Environment
- Treaty Environment
- Political Environment
- National Government Initiative or Government/Private
Initiative (Lecture
#42)(Lecture
#34)
- Political Environment
- Treaty Enviroment
- Financial Environment
- Management Environment
- Regulatory Environment
- International Initiative priority sequence
- Treaty Environment
- Management Environment
- Financial Environment
- Political Environment
- General Status: Current international treaty environment
for either a private, government, government/private, or an international
initiative to develop and utilize lunar resources is currently permissive,
for the most part.
- That is, no treaties to which the United States is a party would, on their face, prevent such development.
- Political pressures, however, might be felt, depending on the nature of the initiative.
Relevant Law and Precedents
- What counts as International Law
- Law of present international political system "governing"
the coexistence of nations
- body of principles
- rules
- institutions
- procedures and precedents
- Benefits
- regulation of relations
- predictability of interactions
- resolution of disputes
- Does it work?
- Most states comply with most of international law most of the time.
- Sources
- treaties or formal agreements
- international customary law
- general principles of law recognized by most major national legal systems
- Treaties and Agreements
- most important component of international law
- legally binding only on those who expressly ratify
- may require minimum number to "enter into force"
- "reservations" related to particular provisions may be taken by individual states
- Customary Law
- widespread practice or common to most legal systems
- "rule" followed as binding rather than convenient
- Law of present international political system "governing"
the coexistence of nations
- Terrestrial Mining Law
- National Systems
- Essentially all "international" mining law derives from national law.
- Alternative situations for a prospective miner:
- owns land and mineral rights
- owns only the mineral rights
- leases mineral rights from owner
- Public ownership of mineral bearing lands has its roots in "sovereign" rights, i.e., the rights of the crown.
- Access to public mineral rights:
- mining claims system (miner has title to minerals)
- concession or leasing system (state has title to minerals)
- state production
- state-private partnerships
- state managed contracts with private entities
- Regulatory control may be exerted by the state
- Historical Background
- United States
- Private enterprise under regulatory framework (General
Mining Law of 1872)
- claims system (metallic and non-metallic minerals)
- bidding/leasing system (fossil fuels)
- No effective national minerals policy except during war-time
(W.W.II and Korea)
- strategic materials "policy" driven by the international marketplace and domestic politics
- strategic stockpile no longer a priority issue
- Private enterprise under regulatory framework (General
Mining Law of 1872)
- Soviet Union/Russia
- Original objectives of state production
- self-sufficiency
- economic base for settlement of Siberia
- foreign exchange
- Current objectives of state-private partnerships
- foreign exchange
- criminal and/or political control
- re-emergence of nationalism
- Original objectives of state production
- China
- State production through military subdivisions (warlord tradition)
- State emphasis on energy supply growth
- Some transition to concession system?
- Japan
- "Private" enterprise with close state cooperation
- Dependent on imports from foreign producers or from concessions
- Western Europe
- Spectrum of approaches
- United Kingdom: mix between US. and Japan
- France: similar to Japan
- Norway: private internally, concessions in the off-shore
- Sweden: state-private partnerships
- Spectrum of approaches
- Third/Fourth World Nations
- Largely through concessions to private or foreign state-run entities
- United States
- Implications for a Lunar Enterprise
- Current situation is permissive, i.e., private enterprise could go the moon, extract resources, and sell them subject to national regulations and taxes.
- Any future negotiated system for the development of lunar resources may or may not have a role for private enterprise, depending on the national political environment at the time of negociation.
- If there is international governance, possible, not mutually
exclusive, roles are:
- hired as contractor
- given concession, based on bidding process, in return for rent and/or royalties
- non-competitive concession in return for rent and/or royalties
- concession to national entities or consortia who may contract to private enterprise
- National Systems
- Antarctic Treaty System
- "...Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord."
- Popular analog for future space law
- Long standing international cooperation without conflict
- Harsh and hostile environment
- Unique environmental features
- No established territorial jurisdictions, although disputed claims to sovereignty exist
- No true human settlement
- Important location for scientific research
- High cost and technologically complex operations to survive
- Management complexity
- Potentially abundant resources
- Treaty of 1959 (entered into force in 1961)
- Negotiated and initially signed by 12 nations
- Established:
- a limited framework of principles and rules for the parties to follow
- a mechanism for continued consultation
- a requirement for unanimous approval of any changes
- periodic Consultative Meetings
- a provision for other nations to join in the treaty
- Actions taken since have expanded the Treaty into a distinctive legal and political regime
- Over 38 nations participate in close cooperation
- Other specific agreements have arisen from the Treaty
- Convention on Mineral Resources of 1988
- Primarily a framework, under the Antarctic Treaty, for making decisions relative to mineral activity, if and when proposed.
- Regulated activities by or for a sponsoring state:
- mineral prospecting (notification but no prior authorization required)
- exploration and development (after prior authorization)
- logistical support
- Regulations included:
- environmental impact assessment, monitoring, and contingency plan
- safeguards
- removal and site rehab
- annual reports
- inspection
- liability
- response actions
- Includes all islands and seabed of the continental shelf
- Excludes scientific research
- Not a detailed mining code
- Contemplates activities by private enterprise if sponsored
- Fees, etc., can be set but use is restricted to scientific
research in Antarctica or to other Antarctic interests of the parties.
- Note: Ratification not achieved due to opposition of the environmental community to any mineral related activity in the Antarctic (CRS 1995)
- Protocol on Environmental Protection of 1991
- Note: Failure of gaining ratification of the Convention on Mineral Resource Activities led to negotiations that led to this Protocol. In addition, in 1990, US law made it a criminal act for US persons to participate in Antarctic mineral resource activity (CRS 1995)
- Definitive treaty arrangement relative to privious Antarctic agreements.
- Consolidated, comprehensive framework for a regime of
environmental protection for the Antarctic
- expedition amendment possible
- Antarctica is designated "as a natural reserve, devoted to peace and science."
- Supersedes the Convention on Mineral Resources of 1988
- Nations can opt out at any time in the future
- Requires:
- environmental impact assessments for almost any activity
- however, national discression allowed on which activities require assessments, and
- there is no independent review
- protection of flora and fauna
- waste disposal and management
- marine pollution control
- area protection and management
- prohibition of mineral resource activities
- environmental impact assessments for almost any activity
- Concern that by superseding the regulatory regime of
the Convention on Mineral Resources, the Protocol may ultimately damage
the Antarctic environment when minerals are discovered and nations opt
out of the Protocol to mine them (Vicuna, 1994)
- Note: The US Senate has ratified this Protocol, however, the President (as of4/5/95) had not deposited the instruments of ratification pending action on implementing legislation which will impact the NSF's administration of the US Antarctic Program (CRS 1995)
- Lessons Learned?
- relative simple, pragmatic, and flexible approach
- largely based on the interests of the "user" states
- bypass troublesome issues of principle not requiring an immediate solution
- tailored, decentralized, evolutionary institution
- rely on competent scientific information and advice
- recommending interim guidelines or voluntary restraints pending further experience and consultation
- consultative mechanism with incentives to participate
- pooling of research efforts and resources
- notice, consultation and inspection to build confidence
- up-front consideration of environmental concerns
- open to all states with an interest
- recognition of the international community as a whole
- some regulation may be better than outright prohibition
- Law of the Sea Convention of 1982
- Jurisdiction Over Mineral Resources
- No internationally accepted general law governing mineral resources of the sea.
- National jurisdictions established by actions and conventions
- Position of the US. is that under international law:
- no state may claim or exercise sovereignty over the seabed beyond the limits of national jurisdiction
- unless prohibited by international agreement, a state
may authorize activities related to mineral resources of the sea, provided
that:
- no sovereignty is claimed or exercised
- reasonable regard is given for the rights of other states
- minerals extracted become the property of the mining state or person
- "National jurisdiction"
- originally 3 miles, or cannon shot distance
- gradually extended to l2 miles
- Truman extended US. jurisdiction to the continental shelf in 1945
- other states took similar actions
- fishing jurisdiction has been extended to 200 miles in many cases
- Discovery, in 1950, of large areas of phosphate and of manganese-rich nodules containing copper, nickel, and cobalt in the deep sea began the attempt to frame an international treaty governing access to these and other resources.
- Provisions of the Convention
- Vague principle of "common heritage of mankind"
- International Seabed Authority (ISA) under the UN
- ISA is a one nation, one vote body
- governed by an assembly of parties with an executive council
- former Soviet Union given three seats on the executive council
- Formation of an international mining company, the "Enterprise"
- Industrialized nations required to sell their technology to the Enterprise
- Private companies may be licensed by the ISA
- fees of up to $1 million/year
- tax rate of up to 70%
- Revenues to be distributed to developing nations
- US objections
- Treaty would deter development
- lack of certainty in granting contracts
- artificial limitations on production
- financial burden of fees and taxes
- mandated transfer of technology
- Inadequate role for US in decision making and in amending process
- Funds could go to so-called national liberation movements
- Treaty would deter development
- Status
- 117 nations signed originally
- 40 more later
- 65 ratifications by September 1994 (with 60 required for entry into force in November 1994)
- 15 did not sign, including the US, UK, Holland, Italy, Japan
- US Deep Seabed Hard Minerals Act passed in 1980
- NOAA authorized to license US nationals for deep seabed mining
- Reagan proclamation in 1983 created the Exclusive Economic Zone (EEZ), extending 200 NM offshore
- US, UK, France, Belgium, Germany, Holland, and Japan agreed in 1984 to respect each other's licensing operations
- Re-negotiated Convention submitted by the President in
October1994 for Senate ratification (U.S. Senate, 1994)
- Confirms territorial limit of 12 nautical miles
- Confirms exclusive economic zone out to 200 nautical miles
- Addresses ocean pollution issues
- Addresses scientific research
- Enhances dispute settlement provisions
- Changes mineral resources development provisions (Part
XI)
- provides garanteed access by U.S. firms
- eliminates mandatory transfer of technology
- eliminates production controls
- scales back administrative structure
- activation of the Convention's operating arm can be blocked "by U.S. and a few of its allies."
- the Convention's operating arm subject to same requirements that apply to private sector
- U.S. has no obligation to finance the Convention's operating arm
- subsides inconsistent with GATT are prohibited
- existing seabed mine sites claims by U.S. licensed firms are grandfathered
- environmental impact consideration strengthened
- Potential problems
- "common heritage of mankind" remains undefined,
however, the President's message to the Senate indicates that it means:
- the oceans and its floor are not subject to national appropriation
- private economic activity is consistent with this concept
- only mining activity is subject to regulation by the Convention's International Seabed Authority
- the existance of the International Seabed Authority
- the potential existance of the Convention's own operating arm, The Enterprise, although the President feels they have made this harmless
- potential for inhibiting litigation
- "common heritage of mankind" remains undefined,
however, the President's message to the Senate indicates that it means:
- The U.S. is applying the Convention provisionally pending
ratification and entry into force
- provisional application will lapse in November 1998 if a sufficient number of industrialized States not become parties to the Convention.
- Status
- 120 nations agreed to re-negotiated Convention (the Agreement)
- 50 states and the EC have signed the Agreement (19 had previously ratified the Convention and 18 industrialized nations, including the U.S.)
- Senate has not ratified (November 1997)
- United States deep seabed mining law (DSHMRA)
- stated to be similar to provisions in the re-negotiated Convention
- Jurisdiction Over Mineral Resources
Text:
(see Bilder, et al., 1989)
References:
Bilder, et. al., 1989, Legal Regimes for the Mining of
Helium-3 from the Moon, WCSAR-TR-AR3-8901-1
Congressional Research Service (CRS), 1995, Antarctica:
Environmental Protection, Research, and Conservation of Resources, Issue
Brief, 4/5/95.
Kiss, A, 1994, The Moon and Antarctica: Implications of and Experiences with International Law, in International Lunar Workshop, ESA SP-1170, p83-90.
U.S. Senate, 1994, Message from the President of the United States, Treaty Document 103-39.
Vicuna, F.O., 1994, The Protocol On Environmental Protection
To The Antarctic Treaty: Questions Of Effectiveness, Georgetown International
Environmental Law Review, 7, p1-13.
Proceedings of the Colloquia on The Law of Outer Space,
International Institute of Space Lae of the International Astronautical
Federation, Published by the American Institute of Aeronautics and Astronautics
 |
|
University of Wisconsin Fusion Technology Institute · 439 Engineering Research Building · 1500 Engineering Drive · Madison WI 53706-1609 · Telephone: (608) 263-2352 · Fax: (608) 263-4499 · Email: fti@engr.wisc.edu |
Copyright © 2003 The Board of
Regents of the University of Wisconsin System.
For feedback or accessibility issues, contact
web@fti.neep.wisc.edu.
|