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Virgiliu Pop The 1 st SPACE Retreat January 10, 2013 1.

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Presentation on theme: "Virgiliu Pop The 1 st SPACE Retreat January 10, 2013 1."— Presentation transcript:

1 Virgiliu Pop The 1 st SPACE Retreat January 10, 2013 1

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 2

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 3

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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 5

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. 6

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 7

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 8

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 9

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 10

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 11

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? 12

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 13

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 14

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. 15

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 16

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

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. 19

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