No, it is not international customary law.
[Update a few minutes later]
I should note that Matt and I had an extensive discussion at the reception this evening. He wrote that blog post after he went back to his room. I also came up with a good way to stake a claim to an entire asteroid under the OST that we thrashed out somewhat.
Which is exactly the conclusion he comes to….
More importantly, the Moon Treaty nations are not even following it, witness the failure of the Netherlands to call a conference to create a Mars Regime to regulate Mars One as the Moon Treaty requires.
It will be interesting to see what is said about the Asteroid Act that codifies how the U.S. has handled lunar materials as Personal Property.
WIsh I could be there for that panel. Need to find a way to watch it.
The conference is being streamed. Probably at the Space Frontier Foundation site.
Below is a link to the text of the Asteroid Act
https://beta.congress.gov/bill/113th-congress/house-bill/5063/text?q={%22search%22%3A[%22Asteroid+act%22]}
It basically codifies existing legal precedents I’ve mentioned here before. If you pick up a rock from an Asteroid it becomes your personal property. And you are not allowed to do anything that would be interference with an ongoing activity nor is anyone allow to do anything that would be interference with your ongoing activities.
However one expansion is it defines a civil procedure to prevent or provide relief from interference while you are working the site. Not radical, but a first step on to building the legal regime for commerce in space. I don’t see why ANY space commerce advocate would want to oppose it…
good way to stake a claim to an entire asteroid under the OST – which would be to find a nation willing to authorize setting up a research station on said asteroid. Considering that there are 160+ nations, many of them desperately poor, finding somebody willing to allow you to operate the station on their behalf for a nominal fee shouldn’t be too hard.
What I always question is why you would need a government to claim the asteroid. Just land on the darned thing and do what you want. Who exactly is going to stop you and how?
The Parent country’s government through tax and commerce laws. It is pretty easy for a government to go after a corporation that doesn’t want to play ball.
Parent country’s government – in the ocean shipping business, this is usually avoided via the flag of convenience routine. Basically, company X (or call them “Carnival Cruise Lines”) is US-based, and X owns a group of subsidiary companies charters in tax and regulatory haven du jour. (In Carnival’s case, Panama and the Bahamas.) The subsidiary companies own the assets (ships in Carnival’s case, asteroids in this case) and (at least on paper) conducts operations. The subsidiaries also get the profit, which flows up into the main company.
That is how the Isle of Mann has been positioning itself, as a flag of convenience for commerce in space. But if a firm used it, like SpaceX, they wouldn’t get those big money government contracts they survive with. They would have to be truly commercial firms.
Because those corporations must operate also on Earth, and nations are responsible for seeing their citizens, including corporate citizens, obey the OST. And the OST prohibits nation, and their citizens, from claiming Celestial Bodies.
However, if you really wanted to go that route to claim an asteroid you wouldn’t want an OST nation for your “front”. You would want one of the handfuls of nations that have not signed it 🙂
I see what you did there. Are you deliberately trying to confuse ownership with sovereignty or do you just not know the difference?
Actually you don’t seem to understand the connection in terms of Real Property and Sovereignty or the legal difference between Real Property and Personal Property.
Real Property rights are granted by nations on land they have Sovereignty over. Period. Look at any real estate title, you will find a list of ownership transfers going back in time until the original land patent was issued by the government that had Sovereignty over the land at the time the land patent was issued. This is basic real estate law.
Squatter rights, which is what you are probably also thinking of, only exist in the context of national sovereignty. Basically they require the original real property owner to abandon their property long enough for someone else to establish control of it, then the Courts of the nation that has sovereignty over territory issues them title to the property, a document that gets added to the long list of other documents that are part of the title history of a piece of Real Property. Easement rights granted by courts are a variation of the laws on “squatter’s” rights.
Since Celestial Bodies are not subject to appropriation by nations that signed the OST, nations have no Sovereignty over them and are therefore unable to grant Real Property rights.
By contrast the OST is very strong on Personal Property rights. For examples nations, and their citizens, retain control over their spacecraft and even parts of the spacecraft forever. There are no salvage rights in space. If fact the Registration and Rescue Conventions go even further and require that parts of spacecraft that fall on the territory of foreign nations be returned to their original owner, so the prohibition on salvage even applies to Personal Property in space that reaches Earth. There is simply no legal mechanism for a third party to seize such Personal Property, the owner must transfer it voluntary. This is stronger than Personal Property rights in the U.S. where court action may seize it if certain conditions are satisfied.
Nations, and their citizens, also retain ownership of any samples, rocks, etc, they gather that are no longer part of a Celestial Body, the act of gathering basically separating them from the Celestial Body and transforming them from Real Property to Personal Property. Which also provides samples with the same Personal Property rights. France could sue all it wants to get an Apollo sample, but it will only get it if the U.S. is willing to give it voluntary.
And this is why the Moon Treaty is rejected by so many nations, especially space faring nations, because it erodes the Personal Property rights that exist under the OST, requiring nations like the U.S. to share any rocks and samples gathered from Celestial Bodies AND to apply for a permit to gather them and do research on Celestial Bodies. You want to send a new rover to Mars? The “Mars Regime” must grant permission first…
Sadly Australia, like the Netherlands, are Moon Treaty nations, which means any space ventures in those countries are bound by the Moon Treaty. This BTW includes Mars One which is incorporated in the Netherlands and has two major Australian sponsors. However, the lack of any of the Moon Treaty nations starting the process of creating a “Mars Regime” makes me wonder if they even understand what the signed, and merely signed it the hopes of getting a cut of the wealth, physical and informational, of space faring nations like the U.S. …
But the key point is that space law, and property rights in space, are not as difficult as certain “legal” Philosophers try to make it. And they would have more credibility as “legal” philosophers if they did their research, especially on the history of property rights in the West, international law and on the space treaties in force. Its not as vague as some folks think it is.