Virgiliu Pop

The 1st SPACE RetreatJanuary 10, 2013

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OutlineThe property status of asteroids

Are the asteroids “celestial bodies” in the legal sense?

The Commons RegimeThe Common Heritage of MankindHomesteading the asteroids

The legality of planetary defenseDefending the Earth – a right, or an obligation?The legality of deflection strategiesThe deflection dilemmas

Conclusion2

The Property Status of AsteroidsThe sky is a mineAsteroids contain wealth amounting

to $100 billion for each person on Earth

How is this wealth going to be appropriated?

Space law governs the conduct of States in space

Space law is not always crystal-clear

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Are the asteroids “celestial bodies” in the legal sense?The 1967 Outer Space Treaty does not

define its area of application.How tall is the sky? 1976 – the Bogota

DeclarationWhat is a celestial body in the legal

sense?Celestial bodies cannot be appropriated.Immovables versus movables:

Land – immovable – cannot be moved / consumed

Movables can be moved / consumed5

The spatialist approachHow “big” is “big”? The Sorites paradoxSpace dust versus planets: where does one

draw the line?The functional approach

The actual use of the asteroid – in its territorial, or substance, dimension.

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The control approachIt is movable what can be moved

by human interventionAsteroids as space objectsThe iceberg analogySome things in space should not

be considered “celestial bodies” in the legal sense, hence they should be able to be appropriated

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The Commons RegimeCelestial bodies belong to “everybody

and nobody”Property is not monolythical , it is a

“rubble pile”. The right to use a goodThe right to exploit its “fruits”The right to dispose of one’s good

(“title”)1967 Outer Space Treaty – an open

access regimeFirst-come, first-servedLimitations of use; no “title” permited

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Property status of extracted resourcesExtraction changes an immovable into a

movableExtraction of resources is allowed under the

OST regimeMaterial extracted from the Moon has been

already sold – an important precedent.Two conflicting modifications to this regime

proposed:Fee-simple ownership: property not only in

extracted resources, but also in the landCommon Heritage of Mankind: share of the

extracted resources9

The Common Heritage of MankindA Marxist concept1979 Moon Agreement

It applies as well to other celestial bodiesProhibition of landed propertyObligation to share the benefits with the “have

nots”Not widely ratified

A fallacious paradigmIt sanction the “culture of entitlement”It offers no incentive to exploit the riches of spaceIt rewards inactivity, not initiative

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Homesteading the AsteroidsRecommendation of the 2004 Aldridge

CommissionThe Frontier ParadigmMeans of acquiring ownership over asteroids

Simple claim is not enoughAppropriation by human presenceAppropriation by telepossession

Telepresence Telemetry Telerobotics

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The Legality of Planetary Defense

The sky is a mineIs planetary defense a right, or an obligation? Who is entitled - or obliged - to defend the

Earth from the PHO menace? Are all deflection technologies legal? Can nuclear explosions be used not only for

deflection, but also for exploiting the mineral riches of asteroids?

Could asteroids be used for waging war?12

Defending the Earth – a right, or an obligation?

Article I OST – Freedom of outer space“Hostis humani generi” – universal

jurisdictionInternational treaties bind those who adhere

to themMoral obligations are not the same as legal

obligationsPlanetary defense is a right, not a legal

obligation; it is nonetheless a moral obligation

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The legality of deflection strategiesThe earlier a PHO is discovered, the

least controversial deflection strategies are.

Survey of PHOs is undoubtedly lawful.Various defense technologies have

different security implicationsSome technologies are dual-use –

basically, weaponsSome technologies are equivalent to

weapons of mass destructionSuch technologies carry the risk of

misuse 14

Weapons of Mass Destruction cannot be stationed in the celestial realms (Outer Space Treaty)

Peaceful nuclear explosions, otherwise lawful (PNE Treaty), are basically forbidden in outer space (Moscow Treaty, CTBT Treaty)

ABM systems were forbidden by the defunct 1972 Anti Ballistic Missile Treaty

Treaties are only valid among parties, and can be modified. 15

The Deflection DilemmasThe original (Sagan’s) dilemma: If one can deflect

an asteroid away from a collision, one can also deflect an asteroid toward a collision.Asteroids can be theoretically used as kinetic

weaponsSolution: use non-controversial methods such as

albedo modificationSchweickart ‘s dilemma: whom to sacrifice Yet another dilemma: obey the law and sacrifice

the Earth, or save the Earth while violating the law. An obvious answer

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Mines, mines …“Here be dragons” – “here be asteroids”

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… and mineHumans have the ability to tame nature, to

make allies from former enemiesThe asteroids will be tamed, and transformed

from a mine field, into a field of mines; from a force that wipes out civilizations into a resource that builds them.

Private enterprise , by “mining” the sky, will also “demine” it

For this, we need property rights in space – incentives.

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