NEEP602 Course Notes (Fall 1996)
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)
Note: Notes in bold italics were added after the 4/26/96 lecture.
Major Approaches to Implementation of a Lunar Enterprise
- Private Initiative (Lecture #41) priority sequence
- Financial Environment
- Regulatory Environment
- Treaty Environment
- International Initiative priority sequence
- Treaty Environment
- Management Environment
- Financial Environment
- General Status: Current international legal environment for either a 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.
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
- binding only on those who expressly ratify
- may require minimum number to "enter into force"
- "reservations" may be taken by individual states
- Customary Law
- widespread practice
- "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
- 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
- Private enterprise under regulatory framework
- Soviet Union/Russia
- Original objectives of state production
- self-sufficiency
- economic base for settlement
- foreign exchange
- Current objectives of state-private partnerships
- foreign exchange
- Original objectives of state production
- China
- State production through military subdivisions
- Some transition to concession system?
- Japan
- "Private" enterprise with close state cooperation
- Dependent on imports from foreign producers or 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
- Any future negotiated system for the development of lunar resources may or may not have a role for private enterprise.
- 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 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.
- Regulates activities by or for a sponsoring state:
- mineral prospecting (notification but no prior authorization required)
- exploration and development (after prior authorization)
- logistical support
- Regulations include:
- 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)
- Consolidated, comprehensive framework for a regime of environmental protection for the Antarctic
- Antarctica is designated "as a natural reserve, devoted to peace and science."
- Supersedes the Convention on Mineral Resources of 1988
- Requires:
- environmental impact assessments
- protection of flora and fauna
- waste disposal and management
- marine pollution control
- area protection and management
- prohibition of mineral resource activities
- 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) has 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
- 34 ratifications by 1988 with 60 required for entry into force (still not in force today)
- 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
- Current negotiations underway to revise the Convention
- Jurisdiction Over Mineral Resources
- Space Law
- Outer Space Treaty of 1967
- Over 90 states, including the US, are parties
- Drew heavily on the Antarctic Treaty
- Has broad acceptance, with many principles taken from international customary law
- The Treaty:
- pertains to the exploration and use of outer space, including the Moon and other celestial bodies
- activities shall be for the benefit and in the interest of all countries
- space shall be the preserve of all Mankind
- provides free access to all nations
- provides for freedom of scientific investigation and encourages international cooperation
- states that outer space is not subject to national appropriation
- provides that the Moon and other celestial bodies shall be used only for peaceful purposes
- provides that state parties shall be responsible for continuing supervision of national activities
- states that activities will be conducted with due regard to interests of other parties
- provides that a state party retain jurisdiction and control over objects it places in outer space
- states that activities on the Moon and other celestial bodies will be conducted so as to avoid their harmful contamination
- provides for consultation if there is a potential for harmful interference with the activities of others
- provides for the disclosure of the nature of activities undertaken in outer space
- provides for reciprocal inspection rights
- provides for an amending process
- provides for withdrawal upon a one year notice
- No specific rules for mineral development on the Moon
- mineral development not precluded
- activities governed by the Treaty and other international law
- Moon can be used for peaceful purposes
- activities not restricted to scientific purposes
- territorial claims are precluded, but "use" is not
- national or private ownership of resources removed is not preclude
- general, but unspecified obligation to share benefits with all countries
- exclusive use of installations implied by the provision for advance notice of inspection and right of jurisdiction
- activities by non governmental entities are permitted
- entities obligated to avoid harmful contamination but broader obligations not spelled out
- strong commitment to advance notification and consultation if interference with others is a possibility
- states are internationally liable for their activities and those under their jurisdiction
- Outer Space Treaty of 1967
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.
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
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