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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