Legal Considerations on Asteroid Exploitation and Deflection

1. Legal Considerationson Asteroid Exploitation and Deflection Virgiliu Pop The 1st SPACE Retreat January 10, 2013

2. Outline • The property status of asteroids • Are the asteroids “celestial bodies” in the legal sense? • The Commons Regime • The Common Heritage of Mankind • Homesteading the asteroids • The legality of planetary defense • Defending the Earth – a right, or an obligation? • The legality of deflection strategies • The deflection dilemmas • Conclusion

3. The Property Status of Asteroids • The sky is a mine • Asteroids 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

5. 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 Declaration • What 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 / consumed

6. The spatialist approach • How “big” is “big”? The Sorites paradox • Space dust versus planets: where does one draw the line? • The functional approach • The actual use of the asteroid – in its territorial, or substance, dimension.

7. The control approach • It is movable what can be moved by human intervention • Asteroids as space objects • The iceberg analogy • Some things in space should not be considered “celestial bodies” in the legal sense, hence they should be able to be appropriated

8. The Commons Regime • Celestial bodies belong to “everybody and nobody” • Property is not monolythical , it is a “rubble pile”. • The right to use a good • The right to exploit its “fruits” • The right to dispose of one’s good (“title”) • 1967 Outer Space Treaty – an open access regime • First-come, first-served • Limitations of use; no “title” permited

9. Property status of extracted resources • Extraction changes an immovable into a movable • Extraction of resources is allowed under the OST regime • Material 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 land • Common Heritage of Mankind: share of the extracted resources

10. The Common Heritage of Mankind • A Marxist concept • 1979 Moon Agreement • It applies as well to other celestial bodies • Prohibition of landed property • Obligation to share the benefits with the “have nots” • Not widely ratified • A fallacious paradigm • It sanction the “culture of entitlement” • It offers no incentive to exploit the riches of space • It rewards inactivity, not initiative

11. Homesteading the Asteroids • Recommendation of the 2004 Aldridge Commission • The Frontier Paradigm • Means of acquiring ownership over asteroids • Simple claim is not enough • Appropriation by human presence • Appropriation by telepossession • Telepresence • Telemetry • Telerobotics

12. The Legality of Planetary Defense • The sky is a mine • Is 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?

13. Defending the Earth – a right, or an obligation? • Article I OST – Freedom of outer space • “Hostis humani generi” – universal jurisdiction • International treaties bind those who adhere to them • Moral obligations are not the same as legal obligations • Planetary defense is a right, not a legal obligation; it is nonetheless a moral obligation

14. The legality of deflection strategies • The earlier a PHO is discovered, the least controversial deflection strategies are. • Survey of PHOs is undoubtedly lawful. • Various defense technologies have different security implications • Some technologies are dual-use – basically, weapons • Some technologies are equivalent to weapons of mass destruction • Such technologies carry the risk of misuse

15. 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.

16. The Deflection Dilemmas • The 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 weapons • Solution: use non-controversial methods such as albedo modification • Schweickart ‘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

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

19. … and mine • Humans have the ability to tame nature, to make allies from former enemies • The 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.