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W N White, 15 March 2001, "The Legal Regime for Private Activities in Outer Space", Presented at "Space: The Free Market Frontier", 15 March 2001. Published by the Cato Institute with permission. Released to the Cato Institute in all forms. Copyright 2001 by Wayne N White, Jr..
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The Legal Regime for Private Activities in Outer Space
Wayne White

Existing national and international laws provide a rudimentary framework for commercial activities and settlement in outer space and on celestial bodies. Although we have limited experience with activities outside of space vehicles or enclosed facilities, it is possible to analyze how existing laws will be applied to activities such as mining, manufacturing and construction. One can also conclude that private settlement of outer space and celestial bodies is legal under existing law. Nonetheless, the paucity or outright absence of law regarding certain key subjects such as property rights, mining, salvage, liability, and dispute resolution is a disincentive to private space activities. Individuals, companies and investors are unsure of their rights and have no assurance that their efforts and investments will be legally protected. There is much that national governments can do to encourage private space activities through international agreements and national legislation. This article discusses the existing legal regime and proposes new laws and treaties which would encourage private space activities.

The Existing Regime

Several threshold questions present themselves when one considers private activities in outer space: (1) What laws govern these activities and who has jurisdiction to regulate them? (2) What authority do entities have with respect to personnel in their facilities, around their facilities and in areas of frequent activity? (3) What is the physical extent of private entities' authority? (4) Are activities protected from outside interference? (5) What laws govern liability for personal injury and property damage? (6) What are the procedures for dispute resolution and enforcement of criminal law?

To find the answers to these questions, one must look first to international treaty law and then to implementing national statutes. At the national level, the National Aeronautics and Space Act (42 U.S.C. § 2451, et. Seq.), 18 U.S.C. § 7(6) and 7(7), 25 U.S.C. § 863(d), 35 U.S.C. § 105, 14 C.F.R. 1214.702, and 14 C.F.R. 1217.106 are relevant statutes and regulations. At the international level, two multilateral treaties are relevant: the 1967 Outer Space Treaty and the Liability Convention.

Sovereignty, Jurisdiction and Resource Appropriation

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, commonly known as the "Outer Space Treaty,"1 was the first international space treaty, and it provides the framework for all other space treaties. Its most important provisions, taken together, delineate the international regime of sovereignty, jurisdiction and resource appropriation. Article II of the treaty states that "Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." This author, after lengthy analysis, has concluded that Article II prohibits only national and not private appropriation of territory. However, in common law countries such as the United States, legal theory dictates that the government must have sovereignty over territory before it can confer title on its citizens. Consequently, traditional real property rights would not be possible under this regime.

Nonetheless, nations retain considerable authority under the Outer Space Treaty. Article VIII of the treaty says in part that "[a] state party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body." Because Article IX of the treaty and other broadly applied international laws also prohibit interference with activities, jurisdictional authority under the Outer Space Treaty provides most of the protections traditionally associated with property rights, with a few relatively insignificant limitations. It has hence been labeled as "quasi-territorial" jurisdiction.

Taken together, Articles II, VIII and IX provide the following regime for private activities at the international level: (1) space objects occupy locations on a first-come, first-served basis; (2) Nations have jurisdiction over space facilities and all personnel in or near the facility, irrespective of nationality; (3) Personnel have the right to conduct their activities without the harmful interference of other states; (4) Although entities may not claim ownership of mineral resource "in place," once they have been removed (i.e. mined) then they are subject to ownership; and (5) Jurisdiction (and any rights with respect to a given area) cease when a facility is returned to Earth, destroyed or abandoned or when activity is halted outside a facility.

The Outer Space Treaty does not specify what rights entities have with respect to areas around facilities or in areas of ongoing activities, such as mining sites. Many authors, both American and Soviet, say that facility operators have a right to a "safety zone" in the vicinity of facilities. Certainly states have a right to prevent damage or destruction of a facility by exerting a measure of control over activities within a reasonable distance around the facility. The Outer Space Treaty and principles of general international law prohibit interference with activities, so exercises of jurisdiction in mining areas would also be justified to the extent necessary to prevent interference and ensure safety. The physical extent of these safety zones is unclear, but if the analogous regime for drilling platforms on the continental shelf is any indication (safety zones of 500 meters), then one could predict that the extent of these zones will be strictly limited.

Administration of safety zones will be most difficult in areas of mining activity. Take for instance the situation where a second entity commences mining operations just beyond an original mining entity's safety zone. If the second entity's activities occur in the path of the first entity's planned development, would this violate the Article IX prohibition against harmful interference? The attendant circumstances would probably determine the outcome. If other sites of equivalent value were readily available, then the second entity's rights would probably be subordinate to the original entity's primary rights, even though technically beyond the limits of its safety zone jurisdiction.

Liability and Dispute Resolution

The 1972 Convention on International Liability for Damage Caused by Space Objects, commonly known as the " Liability Convention,"2 sets forth the rules for personal injury and property damage and for resolution of those issues at the international level. Articles I and II of the agreement provide that a nation which launches or procures the launching of a space object, or from whose territory a space object is launched, shall be absolutely liable for damage caused by its space object on the surface of the earth or to aircraft in flight. With respect to damage caused elsewhere than on the surface of the earth, however, states are not absolutely liable but rather are liable on the basis of fault (Article III).

Claims may be asserted on behalf of corporations or individuals by their government. Claims must be presented through diplomatic channels within one year of the date on which the damage occurred. If the parties do not reach a settlement within one year from the date on which a claim is received by the launching state, then the concerned parties must establish a Claims Commission chosen jointly by both parties. The Claims Commission shall then decide the merits of the case and the amount of compensation, if any, on the basis of majority vote, within one year.

The Outer Space Treaty does not have a dispute-resolution provision which would apply to issues other than personal injury and property damage. However, Article III says that parties to the treaty shall carry on activities "in accordance with international law, including the Charter of the United Nations . . . ." Article 33 of the U.N. Charter3 says that parties shall first "seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." In the event that such means fail to achieve a resolution of the issue, Article 36(3) indicates that "legal disputes should as a general rule be referred by the parties to the International Court of Justice . . . ." If the dispute cannot be resolved by the methods set forth in Article 33 and the dispute endangers the maintenance of international peace and security, then Article 37 requires the parties to refer the matter to the Security Council.

Space Debris and Contamination

Article VI of the Outer Space Treaty says that parties to the treaty "bear international responsibility for national activities in outer space ... whether such activities are carried on by governmental agencies or by non-governmental entities ...." States shall ensure that national activities "avoid ... harmful contamination [of outer space and celestial bodies] and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter..." (Article IX).

In his book SPACE DEBRIS: LEGAL AND POLICY IMPLICATIONS, Howard Baker divides space debris into four classes: inactive payloads, operational debris, fragmentation debris and microparticulate matter.4 These categories are very helpful in determining the law's treatment of debris. However, Baker's and other authors'5 use of the term "inactive payloads" is misleading. Because satellites are frequently deactivated for periods of time and then later reactivated,6 and because debris may include objects manufactured in outer space and not just payloads, the term "inoperative objects" is more correct when referring to objects which entities can no longer control (the usage apparently intended by these authors).

Using Baker's categories as so modified (i.e. using the term "inoperative objects") we can further define the legal status of debris. The first issue is whether debris can be classified as "contamination." If debris is classified as contamination, then Article IX of the Outer Space Treaty would require nations to avoid contaminating outer space with debris. The legislative history of Article IX however, indicates that treaty negotiators intended to prevent only biological and possibly chemical or radioactive contamination. Thus, Baker concludes that the term "contamination" does not include debris.7

The next issue is whether operational, fragmentation and microparticulate debris constitutes "component parts" and is hence included in the definition of "space object." The term "space object" appears in several treaties but is not specifically defined. Article I(d) of the Liability Convention states that the term "space object" includes a space object, the launch vehicle and the component parts of both. Article VIII of the Outer Space Treaty refers to "objects launched into outer space, including objects landed or constructed on a celestial body, and ... their component parts." On the basis of these provisions, one can conclude that the term "space object" includes launch payloads, launch vehicles, component parts of both, and vehicles or facilities constructed in outer space or on celestial bodies.

If a space object causes damage, the Liability Convention holds the launching State absolutely liable for damage on the surface of the Earth or to aircraft in flight (Article II) and liable on the basis of fault for damage in outer space or on celestial bodies (Article III). Baker looks to the Cosmos 954 incident for evidence of states' practice but finds the evidence inclusive because the USSR never admitted liability and the settlement procedures of the Liability Convention were never invoked.8 Cargill R C Hall distinguishes between identifiable and unidentifiable objects. He notes that under international maritime law any nation can destroy unidentifiable flotsam and jetsam. In contrast, derelict vessels which still carry indicia of national origin can only be destroyed after permission is secured from the owner and its insurance company.9

This distinction should also be applied in outer space. If the origin of operational, fragmentation or microparticulate debris can be determined, then the debris should be classified as a component part of a space object-- subject to national jurisdiction and all other rights and responsibilities conferred by the various space treaties.10 Such responsibilities would include liability for damage caused by identifiable debris such as that created by Cosmos 954's reentry. Unidentifiable debris, on the other hand, should be considered abandoned and subject to the law of finds. Thus, one could either appropriate or destroy unidentifiable debris at will.

National Legislation

Article VIII jurisdiction permits the state of registry to subject its space objects and personnel to any national laws which are not in conflict with international law.11 During treaty negotiations, the Soviet Union initially argued that space activities should "be carried out solely and exclusively by states,"12 but the U.S. refused to accept that provision.13 As a compromise, the United States proposed,14 and the U.S.S.R. accepted15 the clause in Article VI which says that "[s]tates . . . shall bear international responsibility for national activities . . . whether such activities are carried on by governmental . . . or . . . non-governmental entities."16 Article VI goes on to state that "[t]he activities of non-governmental entities in outer space including the moon and other celestial bodies, shall require authorization and continuing supervision by [parties to the treaty]." Accordingly, states may legislate with respect to a broad range of both public and private activities; and, in most circumstances, they exercise as much authority within the vicinity of their space facilities as they would within their territory on Earth.

The United States has taken the lead among nations in enacting legislation implementing he jurisdiction conferred by the Outer Space Treaty. 18 U.S.C. § 7(6) extends U.S. maritime and territorial jurisdiction to ""any vehicle used or designed for flight or navigation in space on the registry of the U.S. while that vehicle is in flight . . . ." Section 7(7) of the statute extends the same jurisdiction to "[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." Neither of these statute sections specifically provides for jurisdiction over space objects which are not "vehicles." The Space Station Agreement does provide for U.S. jurisdiction though, and the International Space Station is at present the only space object with a relatively fixed location which the United States has made a commitment to construct and occupy.

The National Aeronautics and Space Act gives NASA jurisdiction to regulate civilian space activities. 14 C.F.R. § 1214.702 gives the NASA commander of the space shuttle the authority to ensure the safety and efficiency of the vehicle. Analogous delegations of authority can be expected with respect to permanently located facilities in outer space.

Other legislation worthy of note includes 25 U.S.C. § 863(d) [Internal Revenue Code] which provides that "any income derived from a space or ocean activity-(A) if derived by a United States person, shall be sourced in the United States." 35 U.S.C. § 105 provides that "(a) Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States [unless the space object is carried on the registry of a foreign state or otherwise provided in an international agreement]. (b) Any invention made, used or sold in outer space on a space object or component thereof that is carried on the registry of a foreign state . . . shall be considered to be made, used or sold with the United States . . . if specifically so agreed in an international agreement between the United States and the state of registry. 14 C.F.R. § 1217.106 provides that "articles brought into the customs territory of the United States by NASA from space shall not be considered an importation, and no certification or entry of such materials through U.S. Customs shall be required. This provision is applicable . . . whether or not the articles were launched into space aboard a NASA vehicle."

The Space Station Agreement

Jurisdiction: The 1998 Agreement Among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, commonly known as the Space Station Agreement,17 requires each Partner to register as space objects the elements of the station which it provides. Each Partner then retains jurisdiction and control over the elements which it registers, and over personnel in or on the station who are its nationals (Article 5). Partners must also designate a lead agency to administer their portion of the project and to coordinate efforts with other Partners. "The United States, acting through NASA, shall . . . be responsible for overall program coordination and direction of the Space Station . . ., [and] for overall planning for and direction of the day-to-day operation of the [station]" (Article 7(1).

Liability: Article 16 of the Agreement establishes a cross-waiver of liability for station Partners, their contractors, subcontractors at all tiers, and all employees and suppliers of those entities. The waiver applies to all launch vehicle activities, Space Station activities, payload activities in transit, and payload activities on Earth, including further development of payload products or processes in implementation of the space station agreement. Partners are required to extend the waiver through contract provisions (or other means) to contractors and, presumably through flow-down provisions, to subcontractors. Intellectual property, wrongful-death and related claims, and claims for damage caused by willful misconduct are specifically excluded from the cross-waiver of liability. Provisions for protection of intellectual property are included elsewhere in the Agreement.

Criminal Jurisdiction: Article 22 provides for criminal jurisdiction. Partners have criminal jurisdiction over their nationals on any flight element per Article 22(1). Article 22(2) provides that:

In a case involving misconduct on orbit that: (a) affects the life or safety of a national of another Partner state or (b) occurs in or on or causes damage to the flight element of another Partner state, the partner whose national is the alleged perpetrator shall, at the request of any affected Partner state consult with such state concerning their respective prosecutorial interests. An affected Partner state may, following such consultation, exercise criminal jurisdiction over the alleged perpetrator provided that, within 90 days of the date of such consultation or within such other period as may be mutually agreed, the Partner state whose national is the alleged perpetrator either: (1) concurs in such exercise of criminal jurisdiction, or (2) fails to provide assurances that it will submit the case to its competent authorities for the purpose of prosecution.

Article 22(3) of the Agreement says that the Agreement shall provide a legal basis for extradition of alleged perpetrators if the Partners involved do not have an extradition treaty.

Trends in International Law

There are several multilateral agreements which directly address issues of resource appropriation and real property rights in areas which are not subject to territorial sovereignty. These agreements include the Moon Treaty, the Law of the Sea Treaty and the Protocol on Environmental Protection to the Antarctic Treaty. The terms of these agreements and their degree of acceptance in the international community provide insight into other nations' developing views on resource appropriation and property rights.

In 1979 U.N. representatives completed the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, commonly known as the "Moon Treaty."18 This treaty declares space resources "the Common Heritage of Mankind" and specifically prohibits any form of property rights with respect to such resources. Vague terms in the agreement also require "equitable sharing of benefits" with non-space-faring nations, while other provisions would establish a significant bureaucracy to control development. This treaty met with opposition from pro-space activists and mining interests and was never signed by key nations including the United States and the U.S.S.R. It was subsequently ratified by nine countries, and entered into force with respect to those nations on July 11, 1984.

The contemporaneously negotiated Convention on the Law of the Sea, commonly known as the "Law of the Sea Treaty"19 contained provisions similar to the Moon Treaty, and it received virtually the same reception in the international arena. Initially, the U.S., the U.S.S.R., France, Japan, and the Federal Republic of Germany did not sign the treaty and each enacted national legislation allowing their corporations to mine the seabed.

In the late eighties as it became evident that the Convention as written would likely enter into force without the participation of many important states, the Secretary General convened an informal working group to attempt to resolve the issues of concern to the United States and others. That effort resulted in the adoption on July 28, 1994 of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982, which effectively modified the [Sea Treaty] with respect to its seabed mining provisions. The United States then signed the Agreement and the 1982 treaty . . . . The treaty entered into force in November 1994 and has since been ratified by 130 states including . . . most of the significant users of the sea except for the United States. [The United States has never ratified the treaty].20

The Moon Treaty and the Sea Treaty pitted the developed nations against the undeveloped nations. The undeveloped nations wanted to share in the benefits of resource appropriation even though they did not have the wherewithal to make the necessary financial investment. The developed nations wanted to appropriate resources without excessive bureaucracy and taxes which were perceived to be unfair. Interests opposing these treaties were also concerned that the treaties would establish undesirable precedents in international law with respect to wealth transfer, technology transfer, and property rights, among other things.

In contrast, the more recent Protocol on Environmental Protection to the Antarctic Treaty, an international agreement ratified by 26 countries, resulted from a confrontation between environmental and development interests. An earlier Antarctic resources regime would have allowed mineral and oil exploitation, subject to strict control requiring unanimous case-by-case approval from the 20 nations that hold voting rights under the original 1959 treaty. However, as a result of intense lobbying efforts by Greenpeace and other environmental groups, Australia and France decided to not sign the agreement. Subsequently, nations drafted the Protocol on Environmental Protection, which prohibits any activity relating to mineral resources, such as mining or oil drilling, other than for scientific research, for a period of at least 50 years. The Protocol entered into force on January 14, 2000.21

Despite the unfavorable attitudes toward private enterprise that are evidenced by these treaties, the collapse of the Soviet Union, globalization of business, the internet, and other factors have, in this author's opinion, led to a significant change in attitudes, particularly during the past five years. Increased respect for market incentives and commercialization is definitely the trend in international law. This trend seems to be most pronounced with respect to outer space, due to the relative absence of environmental issues, rapid technological change, and the increasing profitability of space activities, led by the satellite communications industry. Commercialization and real property rights are now, arguably, the most popular topics in international space law, with member states other than the United States even calling for discussion of the issues in the U.N. Committee on the Peaceful Uses of Outer Space, the same body which facilitated negotiation and drafting of the Moon Treaty.

Regardless of international attitudes, the Law of the Sea Treaty and the Protocol on Environmental Protection [of Antarctica] should not provide precedents for outer space. While deep sea mining is only feasible at present in very limited areas, space resources are virtually limitless, and there is no justification for controls, international administration or benefit sharing. Even if it takes undeveloped countries decades longer to reach the point where they can appropriate space resources, said resources will still be plentiful and readily available. Furthermore, there are compelling reasons for promoting private space activities which do not apply to the seas and Antarctica. First, the unique environment of outer space provides opportunities which do not exist on Earth; unlimited and uninterrupted solar energy, near vacuum, microgravity, and temperature extremes offer unique prospects for economically efficient chemical and manufacturing processes. Secondly, moving industry off the planet will reduce pollution on Earth, while the solar wind will sweep away any pollution which occurs beyond low earth orbit. Third, development and settlement of outer space will provide a much needed outlet for those creative, adventurous individuals and companies that aren't happy unless they are pushing the boundaries of new frontiers. Finally, establishing self-sufficient communities beyond Earth will help ensure that terrestrial species will survive in the event of global catastrophe.

The Moon Treaty, due to its lack of acceptance, clearly provides at least one precedent: that prohibition of property rights and onerous control and taxation of resource appropriation is unacceptable to most nations with respect to outer space.

The Outer Space Treaty: Amend, Withdraw or Leave it Alone?

Many non-lawyers have said "Why bother with the limitations of the Outer Space Treaty? The U.S. should just withdraw from the treaty." This threshold question deserves to be addressed. Any state party to the Outer Space Treaty may unilaterally withdraw from the treaty with one year's written notice, pursuant to Article XVI. However, the weight of international legal opinion indicates that at least some of the treaty's provisions have become customary international law. This means that those provisions have been so widely adopted, have been so widely accepted by non-signatories, and have been accepted for such a long period of time that they have become principles of international law which bind even those countries that are not party to the treaty.

Article II of the treaty, which prohibits territorial sovereignty, is the treaty provision which has most likely become customary international law. That provision also appeared in the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which was adopted unanimously by the U.N. General Assembly.22 Moreover, in the thirty-three years since the Outer Space Treaty entered into force, all of the space-faring nations have refrained from asserting territorial claims. On the other hand, one could make a plausible argument that nations didn't make territorial claims because they did not have the economic and technological resources necessary to perfect a territorial claim under international law (generally defined as "the continuous and peaceful display of state authority,"23 which as a practical matter means establishing and maintaining military control).

Regardless of whether the prohibition of territorial sovereignty has actually become customary international law, the widespread opinion that it has, means that withdrawal from the treaty would lead to an international outcry, particularly if withdrawal were followed by territorial claims, which seems to be the primary reason why some space activists and entrepreneurs think that we should withdraw. In and of themselves, unfavorable international opinion and political pressure do not provide sufficient justification for remaining party to a treaty that is allegedly unfavorable to national interests. However, there are other factors which argue against U.S. withdrawal from the Outer Space Treaty: (1) history shows that competition for territorial claims leads to armed conflicts. Militarization of outer space would direct scarce resources away from private development; (2) it would be difficult to delineate boundaries in outer space, (3) private claims would only exercise control over areas that are actually used, whereas national territorial claims would remove large areas from development; (4) prohibiting territorial sovereignty makes the transition to self-governance far easier for settlers once they become self sufficient; (5) having properties which are subject to different national laws in close proximity to each other would lead to cross-fertilization of legal systems. Competition between national legal systems will in most cases lead to better laws; (6) the treaty has no provisions for expensive governing bodies; and (7) there is little in the treaty that is really objectionable. For the most part the treaty lets nations govern their own activities, subject to general principles that the United States already subscribes to.

So, if one concludes that the United States should not withdraw from the Outer Space Treaty, should we amend it? The simple answer is no, it makes more sense to address the few ambiguities and shortcomings in the treaty in ancillary treaties which expand upon the existing provisions of the Outer Space Treaty. The Convention on International Liability for Damage Caused by Space Objects and the Convention on Registration of Objects Launched into Outer Space have already expanded on provisions in the Outer Space Treaty. We are going to need ancillary treaties on jurisdiction, real property, mining and salvage anyway, so why amend a treaty which has already achieved widespread acceptance in the international community?

Recommendations for Further Development of Space Law

In various other articles, this author has recommended that nations promote private activities by executing international agreements relating to jurisdiction, real property rights, mining law and salvage law, with implementing national statutes. Following are summaries of those proposals.

Real Property Rights

Common law countries which are parties to the Outer Space Treaty, including the United States, cannot confer traditional property rights on private entities because such rights derive from territorial sovereignty, which is prohibited by Article II. Civil law countries follow the natural law theory of property rights, and can therefore recognize property rights independent of territorial sovereignty. Because of this dichotomy, and for other reasons set forth above, the author has proposed a regime of real property rights which is consistent with the terms of the Outer Space Treaty. These property rights would derive from the jurisdiction conferred by Article VIII, and could be conferred and recognized by any country in the absence of territorial sovereignty.

The rights conferred include: (1) the right to exclude others from space facilities and safety zones, (2) the right to be free of interference from others, (3) the right to control the activities of all natural persons and legal entities within the owner's space facility and safety zone(s), (4) the right to direct the activities of space vehicles and persons inside those vehicles while the vehicle is in the space facility and safety zone(s), (5) the exclusive right to appropriate resources within the space facility and its related safety zone, and (6) the right to sell property rights.

In accordance with the terms of the Outer Space Treaty, the property rights are subject to the following limitations: (1) If the owner of the space facility or safety zone(s) stops using his property for peaceful purposes, the rights shall immediately terminate, (2) if the owner of the space facility or safety zone(s) abandons the property for a period of 2 years or more, the rights shall terminate, (3) if the owner of an orbital facility deviates from the registered orbital parameters by more than [a percentage to be defined when the treaty is negotiated], for a period of one month or more, the rights shall immediately terminate, (4) owners may not establish property rights which would prevent others from having free access to outer space and celestial bodies, (5) owners shall only have the right to direct the activities of space vehicles on the registry of other states, and the persons inside those vehicles, to the extent necessary to protect the safety of other space objects and persons within the owner's space facility and safety zone(s), and (6) owners shall not have the right to exclude persons who come to inspect the owner's space facility, on the basis of reciprocity, pursuant to Article XII of the Outer Space Treaty.

Treaty on Jurisdiction and Real Property Rights in Outer Space

At the International Institute of Space Law annual Colloquium in Rio de Janeiro last fall (October 2000), the author presented a draft Treaty on Jurisdiction and Real Property Rights in Outer Space which would expand upon Articles II and VIII of the Outer Space Treaty. This treaty implements the author's proposal for real property rights in outer space and the author's recommendations for further specifying the extent of Article VIII jurisdiction.

Mining Law

As stated above, the Outer Space Treaty permits natural persons and companies to remove and appropriate resources in outer space or on celestial bodies, but does not permit them to own resources "in place." At present, there is no regulation of extraterrestrial mining activities, except for nations that have ratified the Moon Treaty. Nonetheless, pursuant to Article VIII of the Outer Space Treaty, nations can enact laws to govern the mining activities of their citizens and mining activities within space facilities and safety zones on their registry.

In the United States, the principal law which governs terrestrial mining activity is the General Mining Law of 1872.24 That law promotes resource appropriation by allowing prospecting and mining virtually free of charge on America's public lands. Miners' prospecting activities are protected by the case-law doctrine of "pedis possessio" (discussed below), and after a valuable mineral deposit has been discovered, by the General Mining Law which grants a "patent" or fee title to the land encompassing the deposit.

Miners do not need a federal license or other grant of permission to prospect and mine under this system. To obtain a patent to the land in which minerals are located, the miner must discover a valuable mineral deposit, locate the claim, record the claim, do at least $100 of annual assessment work or other improvements, file annual affidavits of assessment work with the Bureau of Land Management, and apply for the patent.

The italicized phrases are terms of art which have been further defined by the courts. For example, the courts have subjected the requirement of "discovery" to a "prudent man standard" and a "marketability test"; i.e. the discovery must be such that only a prudent person would expend further effort, and the minerals discovered must offer some possibility of generating a profit. The term "valuable mineral" has been scrutinized to determine what substances qualify; in the context of this article, it is important to note that water is not considered a "valuable mineral." Finally, the term "locate" is the process of marking and describing the boundaries of the claim. The General Mining Law specifically limits the size of claims which may be located.

Pedis Possessio: While prospecting, and before discovery, miners are protected in their occupation of the land by the doctrine of pedis possessio. "Pedis possessio" literally means "actual possession." The doctrine says that a prospector occupying an area and diligently searching for minerals is treated as a licensee or a tenant at will; no one else can acquire rights in the area through a forcible, fraudulent or clandestine intrusion. If, however, the prospector does not act to exclude others or does not search diligently for minerals, and another prospector enters the area peaceably, without fraud or subterfuge, and discovers minerals and locates a claim, the location is valid and the original miner must respect it.25

This doctrine only provides miners with limited protection. Some minerals cannot be discovered without substantial amounts of capital, specialized equipment, and engineering, technical and organizational expertise. In those instances, miners face the risk of losing their entire investment if another party makes a peaceable discovery without their knowledge.

Courts have addressed this issue with respect to uranium, which is difficult to discover because deposits are often deep beneath the earth. To more adequately protect their investments, uranium prospectors have adopted the practice of locating and recording their claims before actual discoveries are made. Although federal and state statutes require miners to discover a valuable mineral before locating a claim, courts and regulatory agencies have allowed miners to validate claims with subsequent discoveries, so long as other miners have not established intervening rights.

In several cases, state supreme courts have expanded the pedis possessio doctrine in connection with uranium prospecting. In 1958 the Utah Supreme Court held that miners could base a valid discovery on radiometric detection and geological analysis, particularly when miners had physically discovered deposits nearby.26 In a similar case, Colorado validated a discovery based on radiometric detection, assaying and the type of rock present at the site.27 Finally, in a third case, the U.S. Geological Survey made an initial discovery while preparing anomaly maps from airborne surveys. The Nevada Supreme Court validated the claim of the first on-the-ground locator using a geiger counter (radiometric detection).28

These cases may find application in the law of outer space because extraterrestrial miners face circumstances which mirror those faced by uranium prospectors: they cannot discover minerals without substantial amounts of capital, specialized equipment and engineering, technical and organizational expertise. One author has gone a step further and suggested that courts need to provide protection to miners who do no more than locate claims and demonstrate a feasible plan for their exploration.29 In light of the risks faced by extraterrestrial miners, that would seem to be a valid recommendation for the field of space law.

Mineral Leasing: The Mining and Minerals Policy Act says that it is United States policy to "foster and encourage private enterprise in [mining activities]."30 However, in recent years public land law has been partly superseded by overriding public considerations as the government has sought to prevent or diminish mining's adverse effects on other resources and amenities.31 The General Mining Law provides that valuable mineral deposits "shall be free and open to exploration and purchase . . . under regulations prescribed by law . . . so far as the same are applicable and not inconsistent with the laws of the United States.32 This statutory language has resulted in regulations of mining activities which encompass a broad range of public policy issues including pollution control and environmental impact, zoning, land use planning, reclamation, administration of the public trust, competing recreational and preservational values and wildlife protection.33

The impact of these regulations has been minimal however, when compared to the effect of laws which have withdrawn various lands and minerals from the coverage of the General Mining Law. There are three principal reasons why the United States has enacted such laws: (1) some minerals, such as coal, are so abundant that there is no need to encourage development; (2) the government has an ongoing need for fuel for government vessels and vehicles and it makes no sense to give fuel away and then buy it back; and (3) if valuable minerals are not given away, they can become a source of revenue.

To implement these policies, the United States has enacted a leasing system for certain minerals and in certain areas of the public domain, as an alternative to the General Mining Law's location system. Minerals subject to leasing include the fossil fuel minerals (oil, gas, oil shale, coal, asphalt, bituminous rock, and solid and semi-solid bitumen); fertilizer and chemical minerals (phosphate, potash, sodium) and geothermal resources.34 All minerals on acquired lands, which amount to about eight percent of all federal lands, are subject to leasing rather than location,35 as are minerals on the outer continental shelf (principally oil and gas).36

Leasing differs from the General Mining Law's location system in the following respects: (1) miners must obtain permission from the federal government before prospecting or mining; (2) miners must pay royalties, rents, and bonus payments; (3) miners may only obtain leases through competitive bidding in areas where minerals are known to exist; (4) miners do not obtain fee title; leases have specified time limits which may be extended if minerals are being produced in commercial quantities; (5) the United States may require "due diligence" and (6) the United States may require protection of competing resources and the environment.37

As one can see, the mineral leasing system imposes greater regulatory burdens and expense upon miners than the General Mining Law's location system.

The S.S. Central America Case: In June of 1986 the Columbus America Discovery Group located the wreck of the SS Central America, which sank in 1857. The ship carried gold which is now worth approximately one billion dollars.38 Using computer analysis, advanced sonar and a remote-controlled robotic probe, the group found the wreck approximately 160 miles off the South Carolina coast, nearly 1 1/2 miles beneath the surface.39

Unfortunately, Columbus America had to go to court to quiet conflicting claims to the treasure. Shortly after the group made its discovery, a second expedition began searching for the Central America in the immediate vicinity of Columbus America's activities. When the second ship refused to leave the area, Columbus America sought relief in federal district court.

To prove their discovery and to permit the court to assert jurisdiction, Columbus America used a telerobotic vehicle to retrieve a piece of coal from the wreck. The coal was delivered to the court, which acknowledged the discovery, asserted its jurisdiction, and issued a Temporary Restraining Order prohibiting other ships from entering the area.40 In subsequent actions the court issued Preliminary and Permanent Injunctions, ultimately enjoining other ships from entering a twenty-square-mile area surrounding the treasure site.41

The court established two important precedents in this case: (1) it protected the rights of individuals to exclude others from a specified area in international waters, and (2) it recognized telepresence as a valid method of discovery. Admiralty law previously protected only the rights of nations;42 this is the first time that a court has granted rights to private individuals.43 And telepresence now offers an alternative to the human presence which admiralty law has traditionally required to establish possession.44 Legal experts have already recognized that these precedents may be applied directly to extraterrestrial mining and salvage operations.45

Recommendations: Extraterrestrial miners will face a situation similar to that faced by both uranium miners and the Columbus America Group: first, they will have to invest a substantial amount of money and effort before they begin their projects; second, they will have to use remote sensing and robotic probes to locate minerals; and finally, they face substantial risk should others dispute their claims. In light of these circumstances, a mining law should be drafted which protects miners' rights and encourages investment to the maximum extent possible.

Mining laws for outer space should follow the precedent of the General Mining Law. These laws should establish a mineral location system similar to that set forth in the General Mining Law. The law should however, be modified to reflect the need for greater protection of miners' rights prior to discovery, and to recognize the role of remote sensing and telerobotics in the process of discovery. Legislators should also change the definition of "valuable mineral" to reflect the fact that some minerals (like water) that are not particularly valuable on Earth, may be of much greater value in outer space.

Salvage Law

The word "salvage" has been defined as "the act of saving or rescuing a ship or its cargo" and as "something extracted [from refuse] as valuable or useful."46 When so defined, salvage is an attractive prospect for extraterrestrial operations. There are many reasons why salvage is desirable: (1) rescuing ships reduces the incidence of death and property loss; (2) re-using hardware which is already in space saves the expense of building and launching new hardware; (3) extracting raw materials from inoperative space objects and space debris could provide critical materials, pending the advent of mining and materials processing; and finally (4) recovery of space debris reduces hazards to the Earth and to spacecraft, satellites, and orbiting facilities.

The need for salvage services is already apparent. The increasing debris population in Earth orbit poses hazards for spacecraft, satellites and especially for long duration facilities such as space stations. Space debris can also threaten the Earth. In recent years several large space objects have survived reentry through the atmosphere. These include Cosmos 954 in 1978 and Skylab in 1979. Although fragments of Skylab did fall on land, no damage was incurred. The Cosmos 954 satellite contained a nuclear power source however, and upon reentry, spread radioactive debris over a large area of northern Canada. Although no lives were lost, cleanup costs totaled $14 million.47

The risks posed by space debris provide considerable incentive for its removal, but the cost of such operations may be prohibitive. Such costs might be offset, however, if the entity removing the debris received some or all of the economic benefit derived from that debris. Thus, while scientists and engineers continue to discuss technical solutions, several legal commentators have suggested that salvage laws could provide economic incentive for debris removal.48

Salvage law could also promote economic use of inoperative space objects. In 1992 U.S. Space Command reported that Approximately 73% of the satellites in Earth orbit were inoperative.49 Salvage of inoperative satellites has already been demonstrated. In 1984 the space shuttle Discovery recovered two disabled communication satellites, Palapa B-2 and Weststar VI. The satellites were returned to Earth for refurbishment and re-use. Before the satellites could be recovered, however, the owners of the satellites, their insurers and the NASA legal staff had to spend considerable time negotiating and drafting agreements to transfer title to the satellites to the insurers and to clarify the rights and responsibilities of the parties.50

Undoubtedly salvage laws would provide greater legal certainty in the process of contracting for salvage services. More importantly, salvage laws could ensure that entities receive equitable compensation when circumstances preclude a contract. For the reasons set forth above, salvage laws are desirable as a matter of public policy.

Maritime and Admiralty Law: United States admiralty law defines salvage as "the compensation allowed to persons by whose assistance a ship or her cargo has been saved, in whole or in part, from impending peril on the sea or in recovering said property from actual loss as in cases of shipwreck, derelict or recapture."51 More recent laws permit salvors who save lives to share in the compensation granted to salvors of the ship and cargo.52

The following elements are necessary for a valid salvage claim: "(1) there must be a marine peril to the property to be rescued; 2) there must be a voluntary service not owed to the property as a matter of duty; and (3) there must have been success in saving the property or some portion of it from impending peril."53 Generally, salvage awards are not granted where the property owner has expressly refused the salvor's services.54

In the absence of a contract for salvage services (or if a salvor claims that a contract was signed under duress or is otherwise inequitable), the salvor may seek compensation through the courts. The amount of compensation granted to a salvor is determined at the court's discretion based on the circumstances of the case. Factors considered by the courts include: "(1) the labor expended by the salvors; (2) the promptitude, skill and energy displayed in saving the property; (3) the value of the property employed by the salvors...; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued."55 Compensation is limited to the value of the property saved, although the award can be far in excess of actual expenses.56

The salvage award is paid by the vessel owner, vessel operator and cargo owners who benefited from the salvage operation.57 The salvor does not become the owner of the salved property, he merely has a lien against the ship and cargo which can be sold to pay the award if necessary.58

The only instance in which the salvor would become the owner of the property would be in those cases where the court finds that the property has been abandoned. In those instances the property is deemed to have returned to a state of nature, and the first person to find it and reduce it to actual or constructive possession becomes its owner. This is known as the law of finds.59 In the absence of express abandonment by the property's owner, United States courts have only found abandonment when adjudicating salvage of long lost wrecks.60

Historically, the international law principle of sovereign immunity has precluded application of salvage laws to ships owned and operated by foreign governments.61 Some nations, including the United States, have made an exception to the rule of sovereign immunity specifically for the purposes of salvage.62 Pursuant to the Public Vessels Act, the United States permits salvage awards to U.S. nationals and to foreign nationals on the basis of reciprocity, for services rendered to government ships. In recognition of this practice, the Brussels Convention was amended in 1967 by a Protocol which extends the treaty's application to public vessels.63

Maritime salvage law provides the best precedent for space salvage laws. The basic elements of maritime salvage law can and should be adapted to outer space. Thus, those who rescue space objects and their cargoes from peril and return them to their owners should be entitled to equitable compensation calculated on the basis of criteria similar to those used by maritime courts. If salvage services are provided pursuant to a preexisting duty, compensation should not be granted. And, life salvors should share in compensation granted to property salvors.

Space salvage should be predicated on similar notions of jurisdiction. Only identifiable objects can be the subject of national jurisdiction. Unidentifiable debris should be considered abandoned, returned to a state of nature and subject to appropriation or destruction by the first to find it. As in recent maritime cases, inoperative space objects should only be classified as abandoned after a very long period of time has elapsed, and only if the original owner no longer displays any intent to retain ownership.

Treatment of public space objects should be similar to that found in maritime law. Any treaty which is enacted should contain a clause similar to that found in the 1989 Salvage Convention, i.e. it should prohibit salvage of public objects except when a nation provides otherwise. Because nations may wish to allow salvage of some public objects while retaining absolute jurisdiction over others (e.g. defense satellites), this author recommends that such countries periodically publish a list of objects available for salvage; other public objects would be off-limits and any approach to such objects would be considered a violation of national sovereignty.

Dispute Resolution

As noted above, the Outer Space Treaty does not provide a dispute resolution procedure other than consultation between the parties. The U.N. Charter, incorporated by reference in the Outer Space Treaty, permits parties to submit to the jurisdiction of the International Court of Justice, and then to have disputes decided in that venue. The United States declared its acceptance of the Court's jurisdiction under this provision in 1946. However, the United States withdrew the declaration in 1985, in response to the court's disposition of the case Nicaragua v. United States. In its formal explanation, the United States offered the following reasons for its withdrawal: (1) the majority of other nations had never accepted the Court's compulsory jurisdiction; (2) the Court had been misused for political reasons; (3) continued acceptance of the Court's jurisdiction was contrary to the United States' commitment to the principle of equal application of the law; and (4) continued acceptance of the Court's jurisdiction would endanger the United States' vital national interests.64

Other nations share similar views, and very few states have declared themselves subject to the Court's compulsory jurisdiction.65 In fact, "[n]ot a single State with remarkable space activities has recognized the jurisdiction of the International Court of Justice according to the optional clause . . . ."66 It is therefore not surprising that states have not utilized the Court to the extent which parties anticipated when the United Nations Charter was drafted.

As set forth above, the Liability Convention provides dispute resolution procedures (Articles VIII - XIX). One writer has compared the remedies offered by the Liability Convention to litigation in national ("municipal") courts. With respect to the Liability Convention, he observes that: (1) governments may not assert claims because of political considerations, to the detriment of private parties; (2) the Claims Commission may define damages narrowly, resulting in smaller awards than one could expect in some municipal courts; and (3) diplomatic negotiations may proceed indefinitely because the Claims Commission is only formed if one of the parties so requests. The writer contrasts these aspects of the Liability Convention with the familiar uncertainties and complexities of international litigation, which include jurisdictional questions, sovereign immunity, the doctrine of forum non conveniens, and choice of law. He concludes that municipal litigation is subject to less uncertainty than the Liability Convention procedures, and therefore "provides the most beneficial avenue for recovery for private claims."67

In the absence of an agreement establishing binding procedures for the field of space law, it is likely that most national governments will continue to resolve their disputes through diplomacy. It is unlikely, however, that private parties will rely on state governments to resolve their disputes. Private parties that have already had disputes have resorted to other venues. Many have filed claims in United States courts,68 while at least one dispute had been submitted to international arbitration when the author wrote on this topic in 1992.69

In the broader field of international disputes, most private parties prefer arbitration over litigation. There are many reasons for this preference. Arbitration is confidential. It allows parties to select an arbitrator that they view as impartial, who has expertise in the subject matter of the dispute. Arbitration also avoids much of the complexity and uncertainty inherent in international litigation. Typically, jurisdiction, choice of forum and choice of law are not at issue in international arbitration, because parties have already resolved those issues, either by contract before the dispute arises or by agreement after the dispute arises.70 Finally, arbitration tends to be quicker and less expensive.

International arbitration does have its drawbacks, however, particularly as a forum for space law disputes. The first problem has to do with institutions' competence to hear space law disputes. All of the institutions listed above define the types of disputes which they will administer. In most cases arbitral organizations interpret those definitions liberally. The ICC, for example, only accepts "commercial" disputes, but as a practical matter, accepts virtually any dispute which is submitted for arbitration. Nonetheless, some parties may not choose to arbitrate space law issues because they do not believe that a given dispute falls within the categories of disputes eligible for arbitration.

A second weakness in the current scheme is the disputants' and arbitral forums' unfamiliarity with the field of space law. While many disputes arising in outer space will involve questions of contract interpretation or other issues which do not differ from terrestrial disputes, some will present questions which are unique to the field of space law. In those cases, parties to the dispute, and even the arbitral institution, may not know which arbitrators are best suited to resolve the dispute.

The final problem is that arbitration does not establish the precedents which court rulings provide.71 Arbitral decisions are not published, and in some cases the arbitrator is not required to give the parties a written rationale for its decision. Consequently, even the parties to the dispute may not understand how to govern their conduct in the future, to avoid further disputes. This is unfortunate, because space law is a relatively new field with many unsettled questions, where legal opinions would be especially valuable.

These drawbacks can only be remedied through the voluntary action of the arbitral institutions. But the remedies are simple, and would seem to be in the institutions' best interest, because the most accommodating organizations will receive the most business.

Institutions could begin by specifically defining space law disputes as a category of claims which they will accept for arbitration. They could also develop a list of arbitrators with expertise in space law, to assist parties in selecting arbitrators. Finally, these institutions could establish a procedure for the publication of legal findings which would preserve the privacy and anonymity of the parties, while still providing non-binding precedents for the aerospace community.

Finally, the author recommends that the United States amend the Federal Arbitration Act72 to specify that the Act applies to disputes arising in outer space.


There is much that the United States can do to encourage private activities in Outer Space. A treaty which further defines the extent of national jurisdiction in outer space is a predicate to any other treaties and national legislation in the field of space law. The next highest priority should be a treaty on real property rights, followed by a mining treaty, and a salvage treaty, in decreasing order of importance. All of these treaties will require implementing national legislation. The real property legislation can be modeled after the Homestead Act of 1862. The mining legislation can be modeled after the General Mining Law of 1872. Salvage legislation will probably have to compile and distill the various statutes and case law precedents which have accrued over many years. In addition, the United States should update the jurisdiction provisions in 18 U.S.C. § 7(6) and 7(7), and exclude from taxation all profits derived from activities in outer space.

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, done Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).
  2. " Convention on International Liability for Damage Caused by Space Objects", done Mar. 29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762 (entered into force Oct. 9, 1973).
  3. Charter of the United Nations and Statute of the International Court of Justice, done Jun. 26, 1945, (entered into force Oct. 24, 1945).
  5. - See, e.g. - Hall, 1967, " Comments on Salvage and Removal of Man-Made Objects from Outer Space", in PROC. NINTH COLLOQUIUM ON THE LAW OF OUTER SPACE 135 -and- Schwetje, 1987, " Space Law: Consideration for Space Planners", 12 RUTGERS COMPUTER and TECH. L.J. 245.
  6. U.S. Space Command, Telephone conversation with Public Affairs Office, Febraury 20, 1992. Notes on file with author.
  7. H Baker, supra note 4.
  8. H Baker, supra note 4.
  9. Hall, supra note 5.
  10. See H Baker, supra note 4.
  11. Cepelka and Gilmore, " Application of General International Law in Outer Space", 36 J. AIR L. and COM. 58 (1970).
  12. Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, U.N. Doc. A/AC. 105/L.2 (1962); U.N. Doc. A/.5182, Annex 3 (1962).
  14. U.S. Draft Declaration of Principles Relating to the Exploration and Use of Outer Space, U.N. Doc. A/C.1/881 at 23, art. 6 (1962).
  15. Christol, " The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies", 14 INT'L LAW. 429 (1980).
  18. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, U.N. Doc. A/AC.105 L.113/Add.4 (1979).
  19. Convention on the Law of the Sea, U.N. Doc. A/CONF. 62/122 (1982).
  20. Dubner, 'Recent Developments in the Law of the Sea', 33 INT'L LAW. 627, 628-29 (1999).
  21. "Antarctica's Environmental Protocol", 1998 COLO. J. INT'L ENVTL. L. and POL'Y 119 (1998).
  22. Goldman, Settlement and Sovereignty in Outer Space, 22 UNIV. W. ONTARIO L. REV. 156, 166 (1984).
  23. Judgment in the Case Concerning the Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J., Ser. A/B, No. 53, at 45-46 [hereinafter cited as Eastern Greenland Case].
  24. 30 U.S.C. §§ 21-24, 26-30, 33-35, 37, 39-42, 47.
  25. Cole v. Ralph, 252 U.S. 286 (1920).
  26. Rummell v. Bailey, 7 Utah 2d 137, 320 P.2d 653 (1958).
  27. Dallas v. Fitzsimmons, 137 Colo. 196, 323 P.2d 274 (1958).
  28. Berto v. Wilson, 74 Nev. 128, 324 P.2d 843 (1958).
  29. Fiske, 'Pedis Possessio: Modern Use of an Old Concept', 15 Rocky Mtn. Min. L. Inst. 181, 215-16 (1969).
  30. 30 U.S.C. §21(a).
  31. G.C. Coggins and C.F. Wilkinson, Federal Public Land and Resources Law 334, 335 (1981).
  32. 30 U.S.C.A. §22 (emphasis added).
  33. - See e.g. - 36 C.F.R. Part 228 (Forest Service regulations); 43 C.F.R. Groups 3000-3800 (Bureau of Land Management regulations); 43 U.S.C.A. §270-312, 315b, 315i, 661, 664-65, 687b-2, 869, 869-1, 931c, 934-39, 942-1 through 942-9, 943-44, 946-59, 961-70, 1701-02, 1711, 1722, 1731-48, 1753, 1761-71, 1781-82 (Federal Land Policy and Management Act of 1976); 30 U.S.C.A. §§601, 603, 611-15 (Surface Resources Act of 1955); 30 U.S.C.A. §§521-31 (Multiple Mineral Development Act); 30 U.S.C.A. §§1201, 1202, 1211, 1221-29, 1231-43, 1251-79, 1281, 1291-1309, 1311-16, 1321-28 (Surface Mining Control and Reclamation Act of 1977).
  34. U.S.C.A. §§530, 1001-25 (Geothermal Steam Act of 1970).
  35. G.C. Coggins and C.F. Wilkinson, supra note 31.
  36. 30 U.S.C.A. §§351-59.
  37. G.C. Coggins and C.F. Wilkinson, supra note 31, at 397-400.
  38. Seanor, '$1 billion Ruling', ABA J., October 1990, at 22.
  39. Seanor, 'The Case with the Midas Touch', ABA J., May 1990, at 51.
  40. Columbus-America Discovery Group, Inc., v. The Unidentified, Wrecked and Abandoned Sailing Vessel, S.S. Central America, In Rem, 1989 AMC 1955, 1956 (1989); I.d. at 53-54.
  41. Columbus-America Discovery Group, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, In Rem, 742 F. Supp. 1327, 1332 (E.D.Va. 1990); Frantz, 'Salvage of Steamer's Gold Hits Rough Seas', L.A. Times, April 3, 1990, at A1, Col. 1.
  42. Seanor, supra note 38, at 23.
  43. Frantz, 'Salvage of Steamer's Gold Hits Rough Seas', L.A. Times, April 3, 1990, at A1, Col. 1.
  44. I.d., at A16, Col. 1.
  45. Frantz, supra note 43, at A16, Col. 1 - A17, col.1; Seanor, supra note 38, at 23.
  47. H Baker, supra note 4 -and- DeSaussure, 1978, " An International Right to Reorbit Earth Threatening Satellites", II ANNALS AIR and SPACE L. 383.
  48. - E.g. - DeSaussure, " The Application of Maritime Salvage to the Law of Outer Space", in PROC. TWENTY EIGHTH COLLOQUIUM ON THE LAW OF OUTER SPACE, at127 (1986); Note, Space Salvage: A Proposed Treaty Amendment to the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Space, 26 VA. J. INT'L L. 965 (1986) -and- Wanland, 1985, " Hazards to Navigation in Outer Space: Legal Remedies and Salvage Law", 1 J. ASTROLAW 1.
  49. U.S. Space Command, supra note 6. -and- Smith and Lopatkiewicz, " Satellite Recovery: A Lawyer's Perspective", 2(3) AIR and SPACE LAW. 1 (1985).
  50. "The Blackwall", 77 U.S. 1 (1868), quoted in Wanland, supra note 48.
  51. M Norris, 3A BENEDICT ON ADMIRALTY §§ 24, 157-58 (7th ed. 1991), citing 46 U.S.C. § 729; see also Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, done Sep. 23, 1910, 37 Stat. 1658 (1913), T.S. 576, 212 C.T.S. 187, 1 Bevans 780; International Convention on Salvage, done April 28, 1989, reprinted in M Norris at Appendix B-20.
  52. "The Clarita and the Clara", 90 U.S. 1 (1874).
  53. - See, e.g. -, Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, supra note 52.
  54. "The Blackwall", supra note 51.
  55. DeSaussure, 1981, " Maritime and Space Law, Comparisons and Contrasts (An Oceanic View of Space Transport)", 9 J. SPACE L. 93 (1981).
  56. R Bender, UNPUBLISHED CLASS NOTES Southwestern School of Law, Los Angeles, California, Pages 601 - 610 (1990, copy on file with the author).
  57. M Norris, supra note 52.
  58. M Norris, supra note 52.
  59. - See, e.g. - 'Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel', 408 F.Supp. 907, 1976 A. M.C. 703 (S.D. Fla. 1976); aff'd 569 F.2d 330, 1978 A. M.C. 1404 (5th Cir. 1978).
  60. Schwetje, 1976, " Space Law: Considerations for Space Planners", 12 RUTGERS COMPUTER and TECH. L.J. 245 (1987); -see also, e.g.-, Foreign Sovereign Immunities Act of 1976, 90 Stat. 281 (1976), 28 U.S.C. § 1330 et. seq. (1988).
  61. Hall, 1967, " Comments on Salvage and Removal of Man-Made Objects from Outer Space", in PROC. NINTH COLLOQUIUM ON THE LAW OF OUTER SPACE at Page 135.
  62. Schwetje, supra note 61.
  63. Lutz, 'Perspectives on the World Court, the United States, and International Dispute Resolution in a Changing World', 25 INT'L LAW 675, 678 (1991) and citations therein.
  64. H L Van Traa-Engelman, 1989, " Commercial Utilization of Outer Space - Legal Aspects", 253.
  65. Mangoldt, " Methods of Dispute Settlement in Public International Law", in 'Settlement of Space Law Disputes: The Present State of the Law and Perspectives of Further Development', 15, 17 (K H Bockstiegel ed. 1980), cited in i.d.
  66. Eigenbrodt, 1989, " Out to Launch: Private Remedies for Outer Space Claims", 55 J. AIR L. and COM. 185, 219-21.
  68. Bockstiegel, 1992, " Developing a System of Dispute Settlement Regarding Space Activities", PROC. 35th COLLOQUIUM ON THE LAW OF OUTER SPACE, at [first page of article].
  69. De Ly, 'The Place of Arbitration in the Conflict of Laws of International Commercial Arbitration: An Exercise in Arbitration Planning', 12 NW. J. INT'L L. and BUS. 48, 55, 80 (1991).
  70. Rutherford, 'Back to the Future', 140 NEW L. J. 1600, 1601 (1990).
  71. 9 U.S.C. §§ 201-208 (1988), enacted Jul. 31, 1970 (84 Stat. 692).
W N White, 15 March 2001, "The Legal Regime for Private Activities in Outer Space", Presented at "Space: The Free Market Frontier", 15 March 2001. Published by the Cato Institute with permission. Released to the Cato Institute in all forms. Copyright 2001 by Wayne N White, Jr..
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