CYIL vol. 13 (2022)

CHARLES BIRD CYIL 13 ȍ2022Ȏ and Spanish texts of the same treaty on the other. The Chinese text seems to limit prohibited appropriation to states parties to the treaty. 37 The legal ability to acquire proprietary rights to space resources under international law, currently controlled by the OST, can be described as ambiguous at best. The OST is perhaps the most controlling treaty regarding space activities. 38 The OST, on its face, prohibits national appropriation of celestial bodies, 39 as does the Moon Agreement of 1984, 40 although it is far less controlling due to the lack of signatories. The Moon Agreement’s Article 11(3) states that “ Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person …” 41 which would appear on its face to create a window for private entities. As much as it would seem that the U.S. Competitiveness Act is a unique sidestepping of international law, this is not unprecedented in U.S. law. The creation of the Seabed Act took a very similar route. A comparison between the extraction of space resources and extraction of deep seabed resources can be easily made. Some of the same concerns and complications arose when debating resources found in the seabed. One of the concerns was how to incentivize investment through establishing legal certainty of the ability to own and then sell resources extracted from the seabed. 42 Also, the fear that the larger and more wealthy nations would be the only ones able to extract and utilize these resources. 43 The United Nations Convention on the Law of the Sea (UNCLOS) established the International Seabed Authority (ISA) to control and regulate deep seabed resource activities. 44 The UNCLOS, like the Moon Agreement and Outer Space Treaty, classifies the resources as the common heritage of mankind or the province of all mankind respectively, 45 whereas the Competitiveness Act has no such provision. The ISA has the authority to redistribute some of the fruits of this mining to less developed states, 46 which was one of the reasons the United States did not ratify the UNCLOS. This, however, in the interest of promoting deep seabed resource mining, incentivized the United States to enact the Seabed Act. 47 The Seabed Act, like the Competitiveness Act, not only regulates resource extraction and property rights, but also includes sections regarding jurisdiction, liability, and licensing. 48 At the time the United States and other western nations had the international prowess to unilaterally take actions that shaped the way seabed resources were delt with on the international stage. The law of the high seas and the seabed resources developed around 40 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies art. 11(2 & 3) (Dec. 5, 1979), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (Moon Agreement). 41 id. Art. 11(3). 42 BREWER, W., Deep seabed mining: Can an acceptable regime ever be found, 11(1-2) Ocean Dev.& Int’l L. 25, 34 (1982). 43 id. p. 31. 44 The United Nations Convention on the Law of the Sea art. 156 (Nov. 1, 1994), https://www.un.org/Depts/los/ convention_agreements/texts/unclos/unclos_e.pdf (UNCLOS). 45 id. Art.136, and OST art. I. 46 id. Art. 160(2)(g). 37 STEELE, J. Luxembourg, and the Exploitation of Outer Space, 29 Nottingham L.J. 32, 34 (2021). 38 Supra note 6. 39 id. Art. II.

47 Deep Seabed Hard Minerals Resources Act (1980) (enacted) (Seabed Act). 48 30 U.S.C §§ 1411–1428 (2012), 51 U.S.C. §§ 50905, 50912, 50914 (2015).

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