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Professor von der Dunk presents at PINC Zeist
Nebraska College of Law
Professor Frans von der Dunk discusses space law at PINC Zeist
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(speaking foreign language)
He's a professor in Space Law at the University of Nebraska.
And he's always teaching in English there.
He just wrote a book about soccer, that's interesting.
Explaining why the Dutch, so far, never won the World Cup.
However, that's not the subject
of his talk today, unfortunately.
You can talk about that with him during the break.
He's also an IX fan, so be careful.
He will today talk about the fact
that space belongs to nobody.
But that we need to have rules
between different countries about it.
Maybe he will also explain why his consultancy
is named Black Holes and how Pink Floyd inspires him.
Whatever he does, in about 20 minutes from now
you'll be enriched with his story
and know a lot more about Space Law.
A warm hand for Frans von der Dunk.
Thank you very much.
If you ask a Law professor to talk about all those things
that you asked I will stand here for an hour
so I'm afraid I have to skip some things.
Who owns the Moon?
That is essentially the question that I often get
when, at a reception or a party,
I explain that I make my living
with something called Space Law.
What the heck is Space Law, right?
So, I'm happy to confirm after an interview last November
with the Huffington Post that I do exist,
Space Law is not a feature of the imagination.
And actually we did talk about
something called cosmic mining
which is the subject of my talk today.
Now what is that about?
First of all, think about Helium 3 on the Moon.
And, again, this is not a figment of my imagination
so I'm gonna show you a brief clip
from a Dutch TV documentary of 2 1/2 years ago
which explains a little bit more
of what could happen out there.
If we had gold bricks
stacked up on the surface of the Moon
we couldn't afford to bring them back.
This material, at several billion dollars a ton,
is what makes it all worthwhile.
There is nothing that we know of
in the solar system that is worthwhile
going out to get to bring back
to the earth other than Helium 3.
Helium 3 could become
the new fuel of the 21st century.
A source of fusion power that could provide
an almost inexhaustible supply
of clean, pollution free energy.
It would, over the long haul,
replace for electrical power production
not only fossil fuels but would replace nuclear power
as we know understand it, fission power.
If these men are right,
whoever controls the Moon might just control
the world's energy supplies for hundreds of years to come.
Now the question is of course how serious is this?
I don't know the real answer to that
because I'm not a scientist.
I only know that the second man interviewed
in the previous clip was this guy, Harrison Schmitt.
An astronaut, the only scientist
ever to set foot on the Moon.
And in the last Apollo mission,
more than 40 years ago he came back convinced
that the Helium 3 was the future
of mankind in terms of energy supply.
Now, he didn't get much track record, (stutters).
Everybody listened to him politely
because if it's an astronaut
and an astronaut walks into the room you listen.
However, as soon as he left, people shook their heads
and said, "We're not sure that's gonna happen."
So I'm still not sure whether this is actually gonna happen
but we're going to come back to that.
But then fast forward, we now have two US companies
called Planetary Resources and Deep Space Industries
which have serious projects.
They don't aim for the Moon, they aim for asteroids.
Platinum, nickel, iron, and water
which is probably the most valuable
natural resource you can find in outer space.
And, again, to prove that I'm not
making this up just to keep my job,
here is a clip from another TV documentary
of the Netherlands like half a year ago.
What will tomorrow look like?
Our world is at it's limits.
And yet, we all want more. And why not?
Why shouldn't the future be brighter than today?
But where will it come from? Simple.
Our tiny planet sits in a vast sea of resources.
Including millions of asteroids
bathed in the Sun's free energy 24 hours a day.
The same rocks that could fall from our skies
also contain everything we could ever need.
Both out there, and down here.
It's time someone seized the opportunity.
This is a clip from one of those
two companies so it's an advertisement,
i.e., you shouldn't believe everything it says.
So we still need to put the question that
"Is this all gonna be commercially viable?"
We're talking about huge sums of money of going there,
just getting something into outer space,
getting one kilogram into outer space costs 20,000 Euros
more or less so before you bring anything back valuable
that investment, you need something.
I can't judge that question.
The company says, "Yes, it is worthwhile."
Some of them actually say that they're already making money.
So I'm going to focus more on the next question as a lawyer.
"Is this all allowed?"
Now, to look for the answer to that
we first have to go back to the 60s
when a treaty called the Outer Space Treaty was established,
to which the United States and the Soviet Union,
at the time, and France, and the United Kingdom,
and China, and all the other countries
of the world became parties.
So this basically gives you
the legal framework for outer space.
And there's one article in there
which is relevant to this issue.
Article II provides that outer space, including the Moon
and other celestial bodies which includes asteroids,
are not subject to national appropriation
by claim of sovereignty or by any other means.
What does this mean?
Well, you all probably recall from your history classes
that centuries ago many Western European nations
put their flag all over the world in parts of the world
which they thought were pretty empty
and they claimed it for the Motherland
and they created a lot of colonies.
You plant your flag somewhere, it's yours.
Well, ladies and gentlemen, this is truly history
because that is not what applies in outer space
as a consequence of Article II
that you cannot exercise sovereignty in outer space.
So the fact that Neil Armstrong and Buzz Aldrin
planted the flag on the Moon,
the US flag back in 1969 did not mean,
and couldn't ever mean that the Moon
became part of US territory.
Their giant leap was on behalf of all mankind
and not just for the United States.
That's something important to register.
The reason why there was US flag
was to honor the US taxpayer who had, after all,
footed the bill for this hugely expensive enterprise.
So, what does that mean for legal mining
if this is not the United States
or the Netherlands or any other country's territory?
Well, I showed you this one provision
of the Outer Space Treaty which is relevant,
which basically says there's no sovereignty.
Now the Outer Space Treaty didn't go further than that
because in 1967 nobody considered
the possibility of actual commercial mining.
So this gives us the possibility
to interpret this clause in varied means.
There are basically two, I would say two
fundamental possibilities to interpret it.
One is that you say, "Well, if outer space belongs
"to all of mankind, everything in it,
"all the resources, also belong to everyone."
Which means that before you can go
and harvest those you need a kind
of an international licensing regime.
You need a kind of an international body to regulate,
you cannot have one country or the other,
on its own, allow for the exploitation of those resources.
This is something similar to what is currently going on
in satellite communications.
If you want to operate a satellite system
for commercial telecommunication purposes
or for broadcasting, you basically need
the consent of the International Telecommunication Union,
a UN specialized organization,
to use certain frequencies, to use certain orbits.
So there is in satellite communications
this international regime which allows
the commercial exploitation of
the resource of outer space itself.
However, there's also another interpretation
and by way of disclosure, this is the one
that I personally think is by far the better one.
And that is to say, outer space is a kind
of a global commons which means
that everyone at every state can validly use those resources
or allow its commercial companies to use them.
So as long as you comply with
whatever international rules there are,
with whatever international treaties tell you to do,
as long as you are compliant with that
you're good to go and individual states
can individually license that.
That is comparable to fishing on the high seas, right?
High seas you cannot plant a flag there,
the United States cannot cordon off a particular part
of the high seas and says, "Everybody else gets out.
"I am the one who determines who can fish there."
But once a US fisher boat, just like a Chinese
or a Dutch fisher boat gets out there
and once the fish is in the net, it's validly theirs.
They can claim it, they can own it,
they can sell it, they can make a living with it.
And nobody else can pass by and said,
"Give me half of that fish because that comes from
"the high seas which belongs to all of mankind."
But, of course, if you have two interpretations
you still have a possible international problem.
And when these two companies in the US
came forward with quite serious plans
over the last couple of years,
they put a lot of pressure on the US government
to take some unilateral action,
to give them some clue of what
the proper interpretation was.
So back in last November, the US President signed into law
a Commercial Space Launch Competitiveness Act
which did a lot of things but amongst others, in Title IV,
it dealt with space resource exploration and utilization.
In other words, with cosmic mining.
What does it do? Basically it does three things.
First of all, it says we, as the United States,
recognize the right of ownership of US companies
who go out there, mine those resources.
So we give them the opportunity
to then make a buck in selling it to others.
Once you mine them, you have those resources
just like the fish in the high seas.
Secondly, there's another clause in the Outer Space Treaty
which requires states to license,
to authorize and supervise, these operations,
these private operations.
That is what the US has also committed to do
by way of the Act.
Now it will be a few years before these companies
will actually start sending reconnoitering
missions into outer space so they
have a few years to develop the regime,
but they're certainly going to do that.
And, as a matter of fact, within a month from now
the US President should be given a report
on which US Agency should take care of that.
And, by the way, the United States is by far
the most advanced in this as you can imagine.
This is the first national Act
which addresses specifically something like cosmic mining.
Now the third thing for us is probably
the most interesting part because
the Act also calls upon the US President
to make sure that the interests of these US companies
are protected in a global context.
We are speaking about a global context,
we are speaking about a global commons,
we are talking about a global market for those resources.
So you don't just want those companies
to be protected in the US.
And, of course, whatever international regime should arise
it should preferably be along the lines of the US regime.
It should allow commercial harvesting of those resources
subject to a general licensing regime
but not imposing any unfair obligations.
Now that gives, of course...
Maybe that needs a little bit of an explanation.
Suppose that in indeed five or ten years from now
one of those companies is able
to bring back that stuff to earth.
Platinum, for example, which is
very rare on earth these days.
If they bring it back in the United States,
they're good to go because as we've just seen
the United States has recognized those property rights.
And they won't encounter any legal problem.
However, everywhere else where it lands
you're not sure what's gonna happen.
Do these other countries recognize the same rights?
Or do they say, "Well, this belongs to all of mankind
"so you have to share it with everyone else."
And it is one thing to bring it back
to the United States safe and sound,
but if you then want to sell it onwards,
you still need to have those other countries
accept the same regime as well.
So that's why these international discussions are important.
Now, I talked about platinum and bringing it back to earth.
That's just one part of the plan
the other part of the plan is to harvest
those resources in outer space
and reuse them in outer space.
For example water, as I said, the most valuable resource
in outer space can be used for human habitats
on the Moon, on Mars.
It can be used for Space Stations
floating around in outer space.
And it can also be used for rocket fuel.
And you don't have to bring it
back to earth first to produce the rocket fuel.
So the idea is gigantic tank stations in outer space.
But you essentially are confronted with the same
conundrum as a private operator.
If you wanna sell it because there's a Moon station
or a space station out there,
if it's a US station, again, no problem
because the US has recognized your property rights.
If it's another country, as of yet, there is no certainty.
So that's why also the US is interested
in an international regime.
So let's have a look at those
international discussions briefly.
There are a couple of countries
who've spoken out on this issue.
On the one hand you have the country called Luxembourg
which recently has declared that it will
offer regulatory and financial incentives
to space resource mining companies.
In other words, they basically agreed
to the US concept that you can unilaterally
license those operations and grant them property rights.
Not entirely accidentally I've been consulting
with the Luxembourg government.
A somewhat more unlikely country in there
which is also pretty positive toward the US
is the United Arab Emirates.
Where they have recently announced
the establishment of a national space law
which should include commercial mining
as one of the commercial activities to be covered.
Not entirely accidentally I have been consulting
with the United Arab Emirates, as well.
Not everyone is happy, of course.
On the other side of the fence,
for example, you find the Russians.
Now I haven't heard any legal argument so far,
that may still come.
Not accidentally I have not been consulting
with the Russians.
Basically the Russians are simply angry.
They don't like this, they see this as one of the
classical US approach of going unilaterally,
of dominating space.
Sometimes it's almost cold war rhetoric
which you say there but as I said,
I haven't seen any legal argument as of yet.
Another country which is not very happy
with that is Brazil.
Brazil is not angry, Brazil is disappointed.
because they would much rather prefer
to see an international discussion prior to any
state unilaterally drafting a law.
And to a certain extent they are right.
As we've seen, even the United States companies
have something to gain from an international regime
because then they can access global markets.
Little bit more of detail you may think,
"Well, why is Luxembourg important?
"It's a very small market."
Well Luxembourg is, of course, part of the European Union.
If you bring a particular commodity with validly
within one European Union country
you are entitled to sell it throughout the European Union.
So Luxembourg is the gateway to the German,
the British, and the French markets.
Now unfortunately, that's not the whole story.
There's a little bit of a snag in there
because there are three member states of the European Union,
Belgium, the Netherlands, and Austria,
who have, apart from the Outer Space Treaty
ratified another agreement in 1979 which says,
and it's called the Moon Agreement
but it also applies to asteroids,
it basically requires those countries
to allow these benefits to be shared with everyone else.
So how that's gonna play out in the future
when somebody's actually going to bring that stuff back
and wants to sell it on the Dutch market I have no idea.
A similar problem arises with regard to Australia
which is also a party to the Moon Agreement.
And Australia, as you may know,
is about 90% desert so if you use that as a landing site
for your robotic mission and you miss by 10 or 20 miles
it's still not a big deal because
you still won't hit anyone, right?
Back in the 1990s there were actually a couple
of US companies who were interested in Australia
as a landing site for their missions.
But then they found out that Australia
was a party to the Moon Agreement and they backed off.
So this is a big issue.
The last flag I wanna show you here is that of China.
Now you may think China, which you know
from it's political perspective from it's gut feeling
would likely side with the Russians, right?
Anything to use as a criticism
against the big bully United States.
But I will bet you a few sweet dollars
that the first man to set foot
on the Moon from now will be a Chinese.
Which means that if the US will achieve
in creating a global understanding that you can
unilaterally mine the Moon or celestial bodies.
Then five years or ten years from now
when the Chinese start doing that on the Moon
the Americans cannot complain, of course.
So they are sitting on the fence
and they're gonna see what's happening.
There's one final snag to this story
and this is about the man who sold the Moon.
Dennis Hope was an American citizen,
or is an American citizen,
who back in 1980 registered his claim to the Moon
with the Californian authorities.
How he did it, I have no clue.
He claims on his website that it took him a day
to convince them to accept his claim as valid,
but he succeeded and he started selling it.
And actually became a multi-millionaire.
And believe me, I'm not making this up.
Good afternoon, Lunar Embassy
and Galactic Government Headquarters, may I help you?
Yeah, we actually have been selling
property on the Moon since 1980.
Properties that we're currently offering for sale
are the Moon of Earth, Mars, Venus, Io, and Mercury.
We have sold just under 600 million acres
on the Moon so far and that's growing
by about 200 properties per day.
All of the red areas here are areas that we've already sold.
The Staff would ask me, "We're out of properties,
"we need to select another area, we just sold that one out.
"Where do you wanna do it?"
And so I just cover my eyes and go like this.
There is just under 10 billion acres on the Moon.
And everything you haven't sold
belongs to you? Yes.
So in 1999 a person by the name of Rigley Pop
emailed me and told me that he had claimed ownership
to the Sun and that he was charging me
30 million dollars a year for the energy it put out
for all planetary bodies that I owned.
I waited a couple of days and wrote back to him
and said, "We've decided we don't want your energy,
please turn it off."
Funny story, right?
But there is a flip side to it.
Before we come to that, I first want to reiterate
that legally speaking, what this guy is doing
is nonsense or fraud, it depends a little bit.
Because the Moon is obviously not the United States
and the fact that in the United States you can claim
ownership over a wild piece of land by putting
a virtual fence around it doesn't apply to the Moon.
So you could shrug your shoulders
and say, "Well, what the heck?"
But this has international repercussions.
When Dennis Hope became successful in the 1990s
there was a German pensioner called Jurgens
who recalled that he had inherited
an old document from an ancestor
who in the 18th century had done a great service
to King Frederick the Great of Prussia.
And as a thank you, the King in royal generosity
gave him the Moon in ownership
and now this German guy wanted the German government
to take diplomatic action against the United States
for allowing a US guy to sell his parts of the Moon.
Again, the Germans of course didn't take this seriously.
Neither did the Americans do so,
but I got, in that timeframe, almost every other week,
a phone call or an email from someone saying,
"Well, I bought this part of the Moon."
or "I'm gonna buy it, should I do it?
"Is that fraud? Is that valid?"
I was always tempted to say, "Well, you can buy
"the same part from me for half the price."
but of course as a law professor
that's not something you're allowed to do, right?
So it does give rise to problems
because suppose that somebody brings back
billions worth of platinum and someone else shows,
"Hey, wait a minute! You took that from my back yard!"
What the heck are the legal consequences of that?
So, the billion dollar question
I'm not gonna answer that for you
otherwise I would probably not be standing here right now.
The only thing I can say is that
I have still a lot of work for me to do in the future.
Thank you very much.
Thank you all folks.
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