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A regime of real property rights would provide legal and political certainty. Investors and settlers could
predict the outcome of a conflict with greater certainty by analogizing to terrestrial property law. Settlers
and developers would also be reassured knowing that other nations would respect their right to remain at a
given location.75 The appropriation of celestial bodies is a contentious and unresolved area of the law, stemming back to the 1945 United
Nations Charter where the drafters aspired to "save succeeding generations from the scourge of war". 76 Regions that were previously
considered terra nullius (e.g. the Moon and the deep seabed) were subsequently labelled common heritages of mankind (CHM) due to the
looming conflicting proprietary and resource claims. Although the Antarctic Treaty makes reference to common interest, ("[r]ecognizing that it is
in the interest of all mankind that Antarctica [...] shall not become the scene or object of international discord") 77 it has nevertheless deferred
addressing the issue of title and sovereignty to a later time, similar to the Moon Agreement's Article 11 (5) on the CHM. Scott explains: The
agreement to disagree regarding sovereignty has been reconfirmed in agreements concluded subsequent to the Antarctic Treaty. Despite a Third
World push in the 1980s and early 1990s to have the Common Heritage of Mankind principle accepted as the basis for a new international
Antarctic regime, the unresolved question of national sovereignty continues to underpin debate on all Antarctic issues, including current
concerns such as the management of tourism and establishment of a secretariat.78 Nevertheless, the idea of non-appropriation for reasons of
international relations has long been advocated, thus resulting in present day setbacks for the appropriation of natural resources in space.
Hence, the international space legislation governing celestial natural resources is extremely complex, particularly in light of the multifaceted
nature of international space law treaties (e.g. OST, Moon Agreement) and the endless interconnectedness of treaty provisions in conformity
with Article 31(3) of the Vienna Convention on the Law of Treaties (VCLT), which requires subsequent treaties to be considered in light of the
antecedent treaty for guidance.79 Since most private entities plan to harvest NEAs by 2020, fewer than seven years remain to sort through the
legal ambiguities currently plaguing international space law and thwarting NEA appropriation and investment. Article
II of the OST is one
ofthemost widely cited provisions regarding celestial natural resource appropriation. The outdated
provision prohibits the appropriation of outer space (which includes the Moon and other celestial
bodies) through national appropriation. Article II Outer space, including the moon and other celestial bodies, is not subject
to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
[Emphasis added] At first glance Article II seems to bans any prospective State-run NEA harvesting mission. This is a highly controversial
provision, as it is perhaps the most significant barrier to State and private entity mining. Various sources claim that private entities fall under
"national appropriation" whereas others argue that private entities do not, thereby leaving this matter unresolved and possibly creating a legal
loophole for private entity mining. Art Dula is a firm believer that non-state entities have the right to mine celestial bodies. He also believes that
the OST's statement of "use" (Article I and II) permits exploitation and that nothing in the OST bans non-state entities from mining the resources,
despite the phrase "national appropriation". Nevertheless, opponents argue that "what
applies to sovereign States probably
also applies to private companies" 80 notwithstanding the wording "national appropriation". This is fitting in light of
other articles in the OST as well as the Registration and Liability Conventions. For instance Article VI of the
OST, which assigns liability asserts "State Parties to the Treaty shall bear international responsibility for
national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on
by governmental agencies or by nongovernmental entities[...]". 81 Again, in accordance with Article 31(3) of the VCLT, 82
all subsequent treaties must take public-private affiliation into consideration, thereby eliminating the
textual loophole created by Article II on "national appropriation". Thus, based on Article VI, opponents have claimed that
the non-appropriation doctrine implicitly includes private entities, accordingly prohibiting private appropriation. In line with this interpretation,
Francis Lyall and Paul Larsen jointly interpret
Article II of the OST to mean that no one, "neither a government nor a
person", may claim title over a celestial body and specifically an asteroid and the mineral resources
housed within. 83 To support this proposition, they cite Gregory William Nemitz vs. NASA,et al, 84 a recent US decision
from the Court of Appealsfor the Ninth Circuitregarding the appropriation of a celestial body. The facts of the case
are simple: Nemitz registered a claim on the asteroid 433 Eros, so when NASA sent a satellite to probe the asteroid Nemitz
demanded that NASA pay parking feesfor landing its satellite on "his property". NASA refused to pay citing Article II
of the OST on non-appropriation by a private entity. Despite the outcome, it is nevertheless important to emphasise that this
is an American decision which concerns complete, as opposed to partial, asteroid ownership— an unprecedented state of affairs.85 In addition
to utilising Article II of the OST,the
1979 Moon Agreement closed the ostensibly
private entity loophole on "national appropriation" by enacting Article 11(3) which prohibits "State,
international intergovernmental or non-governmental organization, national organization or
nongovernmental entity or of any natural person" from claiming property rights to "the surface nor the
subsurface of the Moon, nor any part thereof or natural resources in place". This means that in addition to
States being unable to appropriate the Moon or other celestial bodies, neither can private entitieslike
Nemitz. Nevertheless, the miniscule ratification figures render the Moon Agreement feeble in international space law, which has regrettably
resulted in academics and scientists frequently overlooking the Agreement.86 In addition to these varying perspectives regarding the
appropriation of celestial bodies there are three prevailing viewpoints on Article II and the appropriation of natural resources: First, the OST
does not permit private entity (nor State) appropriation of extraterrestrial material, as discussed above; second, the OST permits private entity
appropriation of small amounts of extraterrestrial material (through the "national appropriation" loophole) and; third, the OST permits private
entity appropriation of extraterrestrial materials (e.g. the entire asteroids).
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Resource Scarcity is the biggest threat to global security - if exacerbated it will culminate in
global war
Trainer 2 (Ted, Senior Lecturer @ University of New South Wales “If you want affluence, prepare for War,” Democracy &
Nature: The International Journal of Inclusive Democracy; July 2002, Vol. 8 Issue 2, p281-299)
‘President Carter last week issued a clear warning that any attempt to gain control of
the Persian Gulf would lead to war.’ It would ‘… be regarded as an assault on the
vital interests of the United States’.65 ‘The US is ready to take military action if
Russia threatens vital American interests in the Persian Gulf, the US Secretary of
Defence, Mr Brown, said yesterday.’66 Klare’s recent book Resource Wars discusses
this theme in detail, stressing the coming significance of water as a source of
international conflict. ‘Global demand for many key materials is growing at an
unsustainable rate. … the incidence of conflict over vital materials is sure to grow. …
The wars of the future will largely be fought over the possession and control of vital
economic goods. … resource wars will become, in the years ahead, the most distinctive
feature of the global security environment.’67 Much of the rich world’s participation in the conflicts taking place throughout the world is
driven by the determination to back a faction that will then look favourably on Western interests. In a report entitled, ‘The rich prize that is Shaba’, Breeze begins,
‘Increasing rivalry over a share-out between France and Belgium of the mineral riches of Shaba Province lies behind the joint Franco– Belgian paratroop airlift to Zaire. …
conflict between the rich nations who are after all the ones most dependent on
securing large quantities of resources. ‘The resource and energy intensive modes of
production employed in nearly all industries necessitate continuing armed coercion
and competition to secure raw materials.’69 ‘Struggles are taking place, or are in the
offing, between rich and poor nations over their share of the world product, within
the industrial world over their share of industrial resources and markets …’70
Impact
Return of resources from some of these NEAs to low or high earth orbit may therefore be competitive versus earth-sourced
supplies. Our knowledge of asteroids and comets has expanded dramatically in the last
ten years, with images and spectra of asteroids and comets from flybys, rendezvous, and impacts (for example asteroids
Gaspra, Ida, Mathilde, the vast image collection from Eros, Itokawa, and others; comets Halley, Borrelly, Tempel-1,
and Wild-2. And radar images of asteroids Toutatis, Castalia, Geographos, Kleopatra, Golevka and other...These
images show extraordinary variations in structure, strength, porosity, surface features. The total
number of identified NEAs has increased from about 300 to more than 3,000 in the
period 1995 to 2005. The most accessible group of NEAs for resource recovery is a
subset of the Potentially Hazardous Asteroids ( PHAs). These are bodies (about 770 now discovered) which approach
to within 7.5 million km of earth orbit. The smaller subset of those with orbits which are earth-orbit-grazing give intermittently
very low delta-v return opportunities (that is it is easy velocity wise to return to Earth).These
are also the bodies
which humanity should want to learn about in terms of surface properties and
strength so as to plan deflection missions, in case we should ever find one on a
collision course with us. Professor John Lewis has pointed out (in Mining the Sky) that the resources of the solar
system (the most accessible of which being those in the NEAs) can permanently support in first-world comfort some quadrillion
people. In other words, the resources of the solar system are essentially infinite… And they are
there for us to use, to invest consciousness into the universe, no less. It's time for humankind to
come out of its shell, and begin to grow!! So both for species protection and for the expansion of
humanity into the solar system, we need to characterize these objects and learn how
to mine and manage them. Once we learn how to work on, handle, and modify the orbits of small near-earth
objects, we will have achieved, as a species, both the capability to access the vast resources of the
asteroids, and also the capability to protect our planet from identified collision
threats.