Virgiliu Pop
The 1st SPACE Retreat
January 10, 2013
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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
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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
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Are the asteroids “celestial bodies”
in the legal sense?
 The 1967 Outer Space Treaty does not define its
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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
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 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.
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 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
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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
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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
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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
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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
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Telepresence
Telemetry
Telerobotics
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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?
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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
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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
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 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.
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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
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Mines, mines …
 “Here be dragons” – “here be asteroids”
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… 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.
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