The final frontier and a Guano Islands Act for the twenty-first century: reaching for the stars without reaching for the stars.

Author:Johnshoy, Matthew
 
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  1. Introduction II. Background A. The Guano Islands Act B. Deep-Sea Mining C. Brief History of the Space Treaties D. Proposals for the Future Development of Space Law III. Analysis A. The Guano Islands Act Solution 1. A New Type of Territory with a Different Sovereignty 2. Dealing With Conflicting Claims Under the Guano Islands Act B. The Deep-Sea Mining Solution 1. Competing Interests Make Appropriation of Resources Difficult 2. The U.S. Deep Seabed Hard Mineral Resources Act Failed to Solve Issues of Sovereignty C. Analysis of the Space Treaties 1. Current Space Treaties did not Envision Exploration and Appropriation by Private Parties 2. Treaty Limits on Appropriation were Intended to Prevent Conflicting Claims and Hostilities by Nation States D. Proposals for the Future Development of Space Law 1. Proposals for an International Regime 2. Proposals for Unilateral Action IV. Recommendation A. The New Proposal B. International Proposals are Not Readily Implementable C. The New Proposal Provides Legal Certainty and Incentivizes Investment V. Conclusion I. INTRODUCTION

    The Obama Administration recently approved a dramatic shift in the way the U.S. government sends personnel and cargo into space. (1) Rather than developing post-space shuttle systems owned by the government, the administration is planning to pay private contractors to transport government personnel and cargo on private launch systems. (2) This new direction should relieve the problem of government "crowd out," which has made it difficult for space entrepreneurs in the private sector to compete with NASA. (3) With NASA out of the way, private companies may finally have an incentive to design and build commercial spacecraft, which can transport not only government personnel but also corporate employees. (4) The Obama Administration has also recognized the increasing importance of space law and space policy by approving the recodification and collection of existing space laws. (5) "For the past 83 years, the United States Code has been limited to 50 titles, but now a new title has been added: Title 51, United States Code, 'National and Commercial Space Programs.'" (6)

    We are on the verge of a new age of exploration and industrialization in outer space. Already, on December 8, 2010, SpaceX, a space startup company, designed, built, and flew an unmanned cargo-ferrying version of their manned space capsule. (7) In the process, SpaceX became the first private company to "recover a spacecraft reentering from Earth orbit," "a feat previously performed by only six nations or government agencies: the United States, Russia, China, Japan, India, and the European Space Agency." (8) SpaceX is currently preparing to launch its unmanned cargo capsule on the first commercial resupply mission to International Space Station (ISS), which will also be the first American resupply mission since the Space Shuttle's retirement. (9) SpaceX has contracted for at least 12 resupply missions to ISS worth $1.6 billion, and NASA has the option to extend the contract. (10)

    Previously, in 2004, SpaceshipOne won the X-prize (11) for private spaceflight and was the first private ship to reach space. (12) Richard Branson's Virgin Galactic is currently testing its larger commercial passenger version, SpaceshipTwo, and has recently opened its first spaceport in New Mexico. (13) Unlike more traditional space launch systems which use rockets to blast cargo directly to orbit, SpaceshipOne is first flown to significant altitude by jet aircraft and then launched, resulting in significant fuel savings. (14) While Virgin Galactic is still working toward its first commercial suborbital spaceflights, its design partners have already begun working on an orbital variant. (15) This new company, Stratolaunch Systems, plans to build an even larger carrier aircraft and has partnered with SpaceX to develop a rocket stage capable of reaching orbit. (16)

    Unfortunately, current space law is undeveloped and may be ill-suited to incentivize and protect the interests of companies willing to invest in the exploration and industrial development of outer space. Developing private industry in space will require huge investments--with investors demanding high rates of return. (17) The most important factor may be the creation of a "stable legal environment" that allows for "the retention of profits and the prevention of technology transfer." (18) The uncertainty created by the lack of a stable legal environment "has undoubtedly hindered investment in lunar mining and is preventing any commercial exploitation of lunar minerals." (19) This Note will address the current "instability" which has made space law ill-suited for the protection of the property interests of investors. (20) Part II of this Note will provide background into different models for creating sufficient legal stability to incentivize corporate investment and the development of new industries, in both non-space and space contexts. Part III will analyze these models and explore how successful these models have been at providing the needed stability. In Part IV, this Note recommends the United States adopt a new model for space exploration which will provide legal stability and incentivize immediate investment.

  2. BACKGROUND

    The claim that a stable legal environment is important for developing space is very similar to the concerns expressed about other exploration intensive endeavors in their infancy. (21) The similarities between earlier exploration and exploitation, and space exploration and exploitation make earlier models a useful analog. This Part will therefore explore ways to create sufficient legal stability to incentivize corporate investment and the development of space by examining other exploration intensive endeavors in recent history. This Part will also provide background on the current state of space law and existing legal proposals.

    1. The Guano Islands Act

      As a young nation, the United States was a latecomer to exploration and colonization; most of the world had already been divided by the other world powers. But throughout the 19th century, sailors were still discovering islands that were uninhabited, unclaimed, and conveniently rich in useful minerals. (22) The principal commercial interest in these islands was the exploitation of their guano deposits, (23) though not every island contained guano deposits. (24)

      At the time, guano deposits provided some of the best and richest fertilizer. (25) Consequently, U.S. farmers' demand for guano increased. (26) Author Christina Burnett describes a "guano mania that began in the 1840s" which led to American companies attempting to claim guano deposits on remote islands to secure guano and profit from the boom. (27) In one particular episode, an earlier American claim on a Venezuelan island was partially appropriated by a competing British expedition before Venezuelan forces evicted both groups. (28) During this period, guano-related corporate interests began to lobby Congress with the view "that the lack of backing from the U.S. government had contributed to their failure[s]." (29) To protect the commercial interests of its citizens and to legitimize claims to discovered islands, the United States passed the Guano Islands Act of 1856. (30) The Act held that:

      Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States. (31) The Guano Islands Act gave the discoverer "the exclusive right" to the guano on the island and allowed them to occupy the island while exploiting the guano. (32) In addition, the Act authorized the President, at his discretion, to use military force to defend the rights of the discoverers. (33) Finally, the Act allowed the United States the option of relinquishing possession once the guano had been extracted. (34) Thus, the Guano Islands Act allowed private citizens who discovered valuable mineral deposits to claim them under an exclusive license, and it allowed the United States to gain insular possessions.

      The Guano Islands Act was tested and upheld as constitutional in Jones v. United States. (35) The Court also found that the Act was in line with international law "recognized by all civiliezed [sic] states," which holds that "dominion of new territory may be acquired by discovery and occupation, as well as by cession or conquest." (36) While Jones made it clear that the United States had jurisdiction over the claimed islands, the Court held that the islands themselves "merely appertained]" to the United States; the United States did not acquire sovereignty over them. (37) Thus, these islands were a unique territorial hybrid with a status totally different than other U.S. possessions. (38)

      Finally, the Guano Islands Act remains a legitimate mechanism for claiming guano deposits even today. (39) In fact, in 1997, a private citizen attempted to claim Navassa, an island in the Caribbean off the coast of Haiti, which happens to be the same island involved in Jones. (40) While the court found the claim invalid, because the island at issue was still claimed by the U.S. government and therefore could not be reclaimed, the case did provide a more recent test of the validity of the Guano Islands Act. (41) Thus, while the Guano Islands Act may be an obscure legal device, it is valid to this day (42) and provides a unique model for appropriating territory and applying U.S. jurisdiction to far flung lands.

    2. Deep-Sea Mining

      Immediately after World War II, the United States began to take a far greater interest in exploiting deep sea minerals. In 1945, President Truman issued a proclamation claiming: "The Government of the United States...

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