Senior Attorney Wayne White has been interested in outer space law since he was in law school. His law review article was “Real Property Rights in Outer Space.” He was the first attorney to comprehensively address the issue of real property rights and was also the first to write about salvage law and mining law for outer space.
After Wayne defended his work for many years, the State Department read Wayne’s published space law articles and concluded that Wayne’s proposal for limited real property rights consistent with existing space treaties constituted “a valid approach.” In 2001, in a private, invitation-only workshop attended by representatives from the United States and all of its close allies, the U.S. administration announced that it was going to begin work to enact real property rights in outer space, based upon Wayne’s work. Unfortunately, U.S. Government actions in response to the 9/11 attack and the second war in Iraq intervened and the legislation was never drafted.
From the time the Soviet Union launched Sputnik 1 in 1957 until 2013, space law was almost entirely international treaty law. There are five United Nations space treaties and the United States is party to four of them. These four treaties are commonly referred to as the Outer Space Treaty, the Registration Convention, the Liability Convention, and the Rescue and Return Agreement.
The fifth treaty, commonly known as the Moon Treaty, has not been widely accepted because it prohibits real property rights, because it would establish an international organization to govern resource appropriation, and because it would require resource-appropriating nations to transfer space technology to developing nations. Wayne has never believed that the Moon-treaty approach is workable because of these provisions.
In 2014 Wayne wrote an article that proposed a United States “Space Pioneer Act,” which would include real property rights, salvage law, and mining law. A longer version of the article was published in The Space Review, and a shorter version in Space News.
In the article, Wayne proposed a compromise that uses the Deep Seabed Hard Mineral Resources Act as a model. Like the Deep Seabed Hard Mineral Resources Act, the Space Pioneer Act will include reciprocity clauses. There will be a reciprocity clause in each of the three legal fields, property rights, salvage law, and mining law. Pursuant to these clauses, the United States agrees to honor other countries’ claims if the foreign government enacts legislation that includes reciprocity provisions, and if the legislation is substantially similar to the U.S. law in certain respects specified in the Act.
The United States will then encourage its allies and any other interested nations to adopt similar laws with reciprocity provisions. By virtue of these substantially similar laws, the reciprocating countries will honor each other ‘s property, salvage and mining claims. In the end this national approach will develop an international regime that is much more flexible than a one-size-fits-all treaty approach.
One of the issues that international lawyers face are the differences between common-law legal systems and civil-law legal systems. The United States, the UK, Australia, New Zealand, and Canada are common-law nations, and the nations of continental Europe and Japan are civil-law countries. These two legal systems are quite different. In common-law countries, judges add refinement to enacted legislation through legal decisions that establish a legal precedent. Judges must follow these precedents in subsequent legal decisions, unless a higher court overrules the lower-court decision. In civil law countries there are no legal precedents established in court cases, and the legal theories and court procedures are different.
Common-law and civil-law nations also have different theories of property rights. Common law theory says that property rights must be granted by the sovereign government, while civil law countries follow the natural-law theory of property rights, whereby “mixing labor with the soil” creates property rights independent of the sovereign.
Because of these differences, multilateral treaties often do not define key terms. Experience has shown that common-law countries and civil law countries often find it impossible to reach agreement on the definition of treaty terms because of the differences in their legal systems and theories. Also, it can take a decade or more to negotiate and draft a multilateral treaty.
Consequently, Wayne concluded that it would be most workable if each spacefaring nation enacts its own laws regarding real property, salvage, and mining, in a manner that is consistent with the country’s terrestrial laws governing these topics. The reciprocity clauses in these laws will then allow for the development of an international system of mutual claims recognition that is very workable because each nation’s space laws are consistent with their pre-existing terrestrial laws, theories, and procedures.
Wayne is confident that Congress will enact the Space Pioneer Act. In the event that the Act does become law, Wayne will be available as a consultant to advise you on any aspects of United States and international space law.
Watch Wayne White speak about space law and the Space Pioneer Act at the International Symposium for Personal and Commercial Spaceflight:
The People of NewSpace: Wayne White, part 1 - Space Law and Policy
The People of NewSpace: Wayne White, part 2 - Salvage, Property Rights and Treaties
The People of NewSpace: Wayne White, part 3 - Safety Zones in Space
The People of NewSpace: Wayne White, part 4 - The Space Frontier Act