Legal Issues

"Laser Law": Safe Use Outdoors
The BIGGEST issue. We absolutely recognise that if we were to harm anyone through our laser use, either a passer-by or aircrew, we should rightly face the full force of the law. Thus we have solidly worked out our geographical sites, hours of practice and standard operating procedures. See the “ABOUT” section for more info on this.
We can confidently say that our use of lasers, with reference to both UK and International guidelines, is conducted safely & responsibly.
Space Law
We view this part of law as tricky, but not impossible to negotiate. In the Space Treaty:
Article 1> potentially offers some weak resistance to an act of celestial appropriation, but is not categoric at all [*common land].
Article 2> “explicitly” blocks only NATIONAL appropriation of celestial land [a bit tricky].
Article 6> is not a hurdle for us as we do not carry out any actual “activity” in Space.
Article 8> does not apply as laser photons are NOT objects. Phycisists term them “massless”.
Public International Law
This is the trickiest issue. The field is complex and by no means uniform. To make matters worse, we’re medically qualified, not lawyers. Doctors and lawyers have traditionally had a rather competitive abrasive relationship but we are most grateful for some good help in our research. As a result of our research we see that our unique decision to effect changes on Mars through laser use is actually very commensurate with the proof required for Factual Possession of a distant difficult land.
Confidence level for laser safety
ABSOLUTE
Confidence In Negotiating Space Law
VERY HIGH
Confidence in proof of factual possession / effective occupation under international public law
HIGH

 

**** SEE BOTTOM HALF OF THIS PAGE FOR DETAILED LEGAL ASPECTS TO OUR MARS LAND CLAIM ****

Want more detailed legal info? Here’s a PDF doc with good snippets from Int’l law and space law journals and books:  Click LAW!

*** $1500 PRIZES!… THE MARS PRIZE  moot court competition page is linked here:  THE MARS PRIZE



Legal Self-Assessment Document:

“We have not planted a flag or marked out the land on Mars with fences … but current International Law still supports our claim and space law does not prevent it … FACT”

NOTE:  We make three claims. Claims 2 & 3 are discrete, but should not be necessary if Claim 1 is successful.

Claim 1 Through our continuous acts of exclusive Factual Possession of all Land on Planet Mars, for 7 years, we continue to openly declare our claim of Factual Possession and are Applying for First Registration of Title to all land on Mars. If successful in application the land claimed will immediately be placed in a land trust (The Mars Trust) with a UN body as the proposed Trustee and all claimants becoming contingent beneficiaries within the trust.

Claim 2:  Through our continuous acts of exclusive Factual Possession of all Land on Planet Mars, for 7 years, we declare possession of all resources of Planet Mars, once extracted from their natural in-situ status. These resources include minerals and water and their altered states that may occur through the extraction process. On the basis of this claim we seek to gain official registration of ownership of all these resources in their (current or future) extracted state such that this ownership status is placed in trust (The Mars Trust) with a UN body as the proposed Trustee and all claimants (the same claimants as documented in Claim 1) becoming contingent beneficiaries within the trust.

Claim 3:  Through our continuous acts of exclusive Factual Possession of all Land on Planet Mars, for 7 years,  we claim all mineral rights to Planet Mars.  We seek to gain official registration of ownership of this mineral estate such that this ownership status is placed in trust (The Mars Trust) with a UN body as the proposed Trustee and all claimants (the same claimants as documented in Claim 1) becoming contingent beneficiaries within the trust.

** In documenting these claims we assert our strong intent to possess that which is claimed.

** The purpose of the claims is, amongst several factors, to influence COPUOS to produce an appropriately updated Outer Space Treaty and to initiate UN Trusteeship of space and celestial bodies therein. UN Trusteeship should prove a useful short to medium term construct in order to facillitate commercial opportunity in Space whilst still preserving the wider celestial lands for the use and benefit of all Humanity.  In the longer term a more dynamic, independent, responsible governing body should replace the UN in this role, in part or all.

SO, HOW IS ALL THIS LEGAL & LEGITIMATE?

1/ Introduction:

Well, to start with, we are not breaking any laws which would constitute a criminal offence! It is important to state this fact to avoid any confusion with internet businesses trading in celestial land deeds.  As founder of this “Save The Space Treaty” Campaign (and our associated Mars Land Claim), I am responsible for the honest and ethical stance of this project (and as a practising UK medical doctor I am absolutely required to avoid any nefarious or unsavoury business activity).

So, for the record, WE ARE NOT SELLING LAND DEEDS TO MARS **

We are completely different from ALL those internet companies that are selling DEEDS to celestial land (eg Moon, Mars, Venus etc). Deeds are legal ownership documents which can only be issued by an officially recognised body. None of those companies have been nationally recogognised as a valid celestial registry. That is not surprising, for the Outer Space Treaty does not allow a signatory state to do so. It is almost feasable, but most unlikely, that such a company could gain International recognition as a celestial registry. This recognition would have to come from an approved international body … currently, there is really only the United Nations that could provide such approval. Again, this is barely feasable because of the “non-appropriation” princliple that the UN believes to be underpinning all space law. There are some gaps in the law, but it is scarcely conceivable that the UN would appoint an internet based commercial agency to administer to those possible rare cases where a valid celestial land claim could be processed.

The current situation is that there exists no such thing as a valid celestial registry.

So, in issuing deeds to celestial land are these internet agencies breaking the law? Well, of course different countries apply their laws differently, but suffice to say that nearly all of these companies do apply a small stamp on their Deed certificates stating “this is a novelty gift” (or ‘novel’ gift). This clearly reduces the worth of the document (most legal interpretations would agree that such a stamp renders the certificate as almost worthless in legal terms). In declaring the Deed to be a novelty gift those companies are effectively playing a “get out of jail card”.

The original celestial deeds purveyor was D. Hope who founded the Lunar Embassy and spawned many further ‘daughter’ companies like lunarland, buymars and moonestates (franchises? … ‘MoonEstates’ bought lunar land from him and sells lunar plots from that chunk to buyers in the UK).

Certainly from as far back as the late 1990’s (maybe earlier), most Deeds issued by Dennis Hope and the Lunar Embassy were stamped “This is a novelty gift”.

Without such a stamp (“novelty gift”), any company selling celestial land deeds is doing so illegally (in most developed Nations) without any national or accepted international authority.

Some of these companies, including Mr Hope’s original, make claims about having valid trademarks and copyrights within their chosen trade. That of course is perfectly legal for a company that sells novelty gifts. A copyright or trademark has no relevance towards any authority to sell real land deeds. The problem with all these companies is that they outwardly claim to be genuine celestial registries with the legal authority to issue valid deeds. Despite charging pretty big fees for their Deed certificates, it is usually only in the small print of terms & conditions (or deep in the FAQs) that one can find the admission that the certificants are stamped as novel/novelty gifts. This is, at the very least, rather unfair and misleading!

*** WE DO NOT SELL DEEDS … IT IS NOT LEGAL AND LEGITIMATE TO SELL ‘REAL’ DEEDS TO CELESTIAL LANDS ***

As part of our fundraising exercises and for a fraction of the price of these “novelty deeds” (usually 1000 times cheaper), we are offering people the chance to buy perfectly legal Celestial Land Claims … in this case, claims to land on Planet Mars. Initially we issued claims for free on a first come first served basis, then offered big savings for “Earlybirds”. Those have all been snapped up, but at time of writing there are still “Saver claims” available, which offer a good reduction from the standard price. So what is the standard price? …. within our single, communal claim to possession of land on Mars, a claim up to 100 Sq Km (almost 25,000 acres) can be bought for under $24 which works out as 10 Acres for less than 1 cent!

Ok, so is this just a trick? … a play on words? … what’s the difference between a land claim and a deed?

A land title DEED is an official legal instrument used to confer rights and ownership to land. A land CLAIM is a legal declaration of “actual possession” of land. The merits of the claim must then be assessed by an official Registry in order to award title Deeds to the land.

Now this is important! You see, as long as we have done all we can to ensure our legal claim to possession is openly honest and genuinely founded in current International law, then we can see that it is legal/legitimate to invite others to join us in this claim, each for a small fee.

How do we know this? … well, after confirming this fact through our own legal research, we sought proper legal counsel.

A comparison? .. ok, let’s take an example from the process for Registration of land title based on a sustained act of adverse possession (see English law: adverse possession). The original person in adverse possession may sell all or part of his ‘single possession’ at any time. This may (or may not) occur several years before submission of Application for Registration documents and thus well before the hopeful award of title by the appointed registry. This, perhaps surprisingly, is quite a common occurrence. Also note that the application for land registration can then be made on the basis of a single act of posession, but on behalf of many people.

So, what we are doing is already established as perfectly legal & legitimate. We issue claim certificates that are also entirely legal. There is no novelty gift stamp on them! They confirm that the new claimant has joined in our claim of possession to land on Planet Mars. They effectively have joined in a “single continuous” act of possession, which means there is no requirement for them to actually join in the actions required of possession, because we are doing these on behalf of all of us. The claim certificates also confirm their beneficiary status should a recognised registry (appointed via UN) decide in our favour with respect to our Application for First Registration (for title deeds) of Mars land. The small fee paid be each new Mars land claimant goes towards the likely costs for the legal due process that lies ahead.

So those claim certificates might end up being worth quite a lot! It is up to us to do our best on behalf of all our fellow Mars land claimants.

So, to recap, does that mean that if anybody just openly states that they consider themselves to be in exclusive possession of celestial land, they can legally start selling land claim certificates? … NO, it does not!… A certain amount of due diligence must be undertaken and demonstrated. The claimant must be prepared to show that they have based their claim, in good faith, upon the existing rules or norms within the applicable law. That means that supporting evidence, in line with the legal requirements for proof of possession, will be required. In the absence of any genuine attempt to meet the proof requirements for ‘Actual Possession’, the claim would be “hokum” (and possibly nefarious), so it would not be legal & legitimate to sell claim certificates to other people.

OK, so if we were talking about selling land claims (or indeed issuing deeds) for new land on Earth, that might be the matter settled, but this is celestial land!

Is there not something in Space Law that prohibits all such land acquisition?… such that it doesn’t matter whether we are selling Mars land claims or land deeds, its all forbidden?!?! … and hence not legitimate and possibly illegal?…

Well this is the crux of the matter. Does the non-appropriation principle (based on the Outer Space Treaty and quoted by Space Lawyers) absolutely preclude any private (or commercial, non national) claims to celestial land?

The evidence out there there says  NO…. not absolutely.

With respect to celestial land  appropriation, the only significant thing in writing within the Outer Space Treaty is located in Article II, whereby it prevents celestial land acquisition by nations. It neglects to mention individuals and companies.

Now that is by no means the end of the matter! Article VI of OST can probably extend the non-appropriation principle to individuals and companies in certain circumstances. Space lawyers award more weight to the unwritten extent of the “non appropriation principle”. … was it a customary rule or norm? … had it even become a structural rule?  We say no to the latter.  Has it been damaged by the latest wave of national space law developments  (eg US Space Act 2015)? … YES, it has.

In the next section we flesh this issue out. For the purpose of this introduction, we state that the non appropriation principle (extended without documentation within the ratified treaty), is not sufficiently structural within space law to immediately bar our celestial land claim or our associated fund raising activities (selling of land claim certificates).

We note a principle of international law which IS  written down: “What is not entirely forbidden is legally permitted”.

2/ Our legal right to Due Process and our right to operate our fundraising website (mars.sale):

The right to legal due process is a human right upheld in most national laws of developed nations and within International law. This does also apply to property and land claims. So, to expand on that…

Access to justice is a basic principle of the rule of law.

International law….  The UN: Universal Declaration of Human Rights and the right to property  [Article 17]: ”

“Everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”

National law: State practice is almost unanimous on the recognition of the right to property (>95% UN member States).

There is compelling evidence that the Right To Property is to be regarded as rule of customary international law.

The evidence for this is much greater than the evidence given to support similar status for the non-appropriation principle in space law (see later in this document).

What does that all mean?..

It means that if our claim to celestial land is sufficiently kosher (ie. the bare basics are in place), then we can demand access to legal due process as per our International Human Rights. This demand, if ignored, will empower us to successfully seek a court injunction or “Equitable Remedy”… which means a National High/Supreme Court or International Court can direct a UN state member (or even a UN committee) to permit access to legal due process for our Mars land claim.

So, the basics… In order to successfully demand access to an appropriate legal due process, there must be no absolute bars to our claim within existing applicable law (and there is not).

Now, in order to speed things up (and keep expenditure to a minimum!), we would rather gain access to legal due process without having to drag our Government (or another Gov or COPUOS itself) through the court systems. So in order to convince a UN committee (sensibly this should be COPUOS) or an international court of our right to access legal due process, we must first be prepared to demonstrate that our land claim is sufficiently well founded with evidential proof as normally required by international law and is not openly barred by any absolute rule of law or treaty. It would also help to show them (up front) that our ultimate goals are noble and ethically sound. We should make it clear that our intent is to form a land trust (The Mars Trust), under UN Trusteeship, rather than some new state (in fact to form a state would require a permanent population, so a non-sovereign “nation” or perhaps “stateless possession” would be the only alternatives).

Well, through our actions over the last 7 years (including the persistent targetting of Mars with high power lasers), we have developed a package of evidence to reasonably justify our claim of exclusive actual possession of land on Mars. We descibe this below. With regard to space law, we have developed a file (rather in the format of a traditional legal “pleading document”) that documents our understanding of our legitimacy when held against ratified space law (indeed we show it to penetrate all articles of the outer space treaty). We also summarize this below.

Prior to our unique celestial land claim there was no established and recognised celestial registry, nor was there any established access to Due Process for such applications  for celestial land registration.

So I should state at this point that I believe we have identified the natural and proper route to due process for such a celestial land claim. Given that no such thing existed before, it took some considerable investigation. Through discussion with UK legal counsel to UN, CPLA Chief at UNOOSA  and Dep Secretary General of the Permanent Court of Arbitration (PCA), we know that the Due Process that we seek must be proposed to COPUOS by a state delegate. They must decide on the nature of that Due Process (a Registry service or a Court Arbitration) and on the construct and location of the service provider. They may choose to convene a bespoke UN Court or use the ICJ, but it is pertinent to document here that the PCA have already indicated, in writing, that they stand ready and capable to deliver this service (via, if necessary, their new “optional rules for arbitration” in disputes concerning space matters). Obviously they would first require all appropriate consent from COPUOS and/or UNGA.

3/ “Guidelines” for land acquisition” derived from modern Public International Law and Private law:

Brownlie’s Principles of Public International Law states: “The concept of “effective occupation” in international law represents the type of legal relation which in private law would be described as possession.”  So he was conceptually equating the aquisition of new land by a nation to land aquisition by an individual. This is important to us because we wished to understand what the typical proof requirements might be for “actual possession”(=effective occupation) of new or unclaimed land on Earth. We thought we might be able to equate the proof requirements for possession of poor quality land on Earth to that which might be required to posses land on Mars. We found that in both public international and private law, the requirements were remarkably similar.

In Public International law (just as in private law e.g squatting / adverse possession), the required proof for Factual Possession (or “Effective Occupation”) is very dependent on the nature of the land claimed. For distant, difficult and rather barren land there is NO requirement for human settlement or established trading of resources (McDougal and Lasswell’s ‘3rd category’ of ‘poor’ land for acquisition). Also the old colonial flag-planting method is long outdated. For such difficult land on Earth, an honest claim can be legally and robustly made through the demonstration of “intent to possess/occupy” and some sustained, exclusive governance/control measures, ideally with some early or preparatory benefit to the land involved. There are good primary sources of evidence (including court cases) to support this accepted view and indeed also for the possession equivalent in private law (for individuals claiming factual possession). Be it a nation in effective occupation or an individual in factual possession, the proof requirements are almost identical and vary according to the quality of the land claimed.  See these excerts regarding continuous factual possession:

Possession did not require actual occupation [Powell v Mcfarlane]

‘In the case of open land, absolute physical control is normally impractical’ [The law of Real Property]

Legal policy may lead a court to regard as sufficient a tenuous connection with the territory
in certain conditions’ [Principles of Public International Law]
*
Effective Occupation does not necessarily require the settlement of the territory or a
physical presence’ [Brilmayer and Klein]
*

Also look at the three major international court decisions that have shaped current international law: See how France beat Mexico to get ownership of Clipperton Island; Netherlands beat USA to get Palmas Island; Greenland went to Denmark rather than Norway. See the very minimal requirements that the law requires in order to successfully claim difficult, distant and relatively barren land.

*

Our land claim to Mars is based on exactly these requirements in existing law. Our evidence base will not be detailed here (it is all provided within the supporting documents to our Application for First Registration of land on Mars … this application having been sent and received/acknowledged by UNOOSA and UK & US Governments. We document written statements of activities performed on a continuous basis, over 7 years, in support of our claim to Mars land possession (all witnessed independently). This involves governance/control activity of an administrative nature (Including the planning and set-up for The Mars Trust and UN Trusteeship), announcements of our exclusive claim of possession (by automated laser Morse Code, radio SpaceSpeak, social media (@IClaimMars) and other means,  plus the sustained, repeated, frequent high power laser targetting of Planet Mars.

We are perfectly correct to declare that, in geographical terms, Mars land is certainly difficult, distant and rather barren. It is difficult to settle and set up a vibrant trading business. Our governance/control measures include the planning for the Mars Trust and development of our communal land claim (based on a single, exclusive sustained act of possession for over 7 years). They also involve the repeated accurate targetting of Mars with strong laser light. Such class 4 lasers can impart 4.5 quadrillion photons per second to the surface of Mars, which does provide a very small amount of light energy to the planet  (120 photons per square meter per second)… but this is NOT negligible. Indeed, with a suitable detector it could be measured on Mars. The positive effect upon land, atmosphere (and primitive photosynthetic life, should it still exist there) would be very small but definate… a measurable ‘non-zero’ effect. See our ABOUT section and Science Section to understand the math and basis for our laser strategy and to learn how we can assert that this provides a genuine but very small effect and benefit to Mars land, atmosphere and, if present, primitive photosynthetic lifeforms. We suggest that such a positive effect should be regarded as very small but legally relevant rather than small and legally trivial.

A judge may rightly choose to uplift the proof bar for evidence of possession of land on Mars (eg. perhaps requiring actual settlement on the land) which is more than is required for “geographically equivalent” land on Earth. The reason for such deviation from the expected norm (and meaning we would be unsuccessful in gaining title registration) would likely be the higher strategic value of such celestial land when compared to its Earth “equivalent”.

We find this to be a very interesting issue…. Understandably, for rather barren, difficult land, International law admits proof of a lower level of governance, as being sufficient for “factual possession” of the land. The fact that the “strategic value” of the inhospitable land on Mars can have such a big influence upon the judge’s decision, shouldn’t be surprising, but it raises new challenges for the judge…

If the judge can find no significant fault in the construct of our Mars land claim and the evidence therein, but finds that the level of governance and control over the land was way too trivial to meet the adjusted ‘proof bar’, then in failing our application, he/she will be leaving the gate open to others with considerably more resources than us.  A wealthy, technically advanced corporation, having harnessed the latest “peta-watt lasers”, could (in a few years time) target Mars with such laser power that the evidence of effect and control on the land claimed would be hugely more obvious.  So if “scale” rather than construct becomes the reason for our failure, then it will be very difficult to resist this scaled-up claim… and it might not come in a benevolent bundle such as ours!

The Judge will have to explain his decisions and should he find that we fall short (in terms of evidence of effective control and governance), he would be expected to state the criteria that would be required for successful proof of Mars land possession.

In such a situation, in order to avoid the problem of scale (as just described), we would expect the Judge to opine that for strategically valuable Mars land, proof of possession would require actual human settlement, something that would then negate the ‘possessors’ right to the land (under Article 6 OST, the relevant nation would have responsibility for the settlement and thus the non-appropriation principle should kick in and block any land claim). This might seem the most logical decision for the judge to make, but even here he is creating considerable new risk. In actually stating the approximate proof to satisfy Actual Possession, he has inadvertently created a land-rush. The first commercial manned mission to Mars might do well to stake a claim to the planet when they land. They will know that the strength of the non-appropriation principle is on the slide (not least because of damage from the US Space Act and soon other national laws to follow), and without a Space Treaty update it will continue to slide!  At some time, probably quite soon, it will cease to “kick-in” … and then somebody just became the King of Mars!

So, if the strategic value of otherwise inhospitable land can influence the judge’s decsion in such a significant manner, then so can the nature of the strategic plan associated with the claim being submitted.

Our claim comes bundled with the requirement (if we win) to have the Mars land immediately placed in trust, The Mars Trust, under secure UN Trusteeship. There’s more on that subject later, but what we are implying here is that an international judge might view our claim more favourably (esp. compared to alternatives) if reassured by the prospect of a safe, controlled outcome … indeed one that actually implements the “Heritage of Mankind” principle, so valued by the UN committees.

Nevertheless, despite all that, it will be this section of International Law that will prove the toughest “battleground” in court for our claim … rather more so than the high profile contest against the weaker space laws built around the aging masterpiece that is the 50yr old Outer Space Treaty… (have a look for yourself: our Earth based actions are not stopped by any of the written text within OST articles, including 2 and 6)….

And so, on to the matter of Space law …

4/ How can we say that our celestial land claim penetrates Space Law?

Well, not only do we think our claim can overcome the soft barriers within space law, we hope to publicly prove (via high media profile in an international court or registry) such concerning weakness within the Outer Space Treaty that COPUOS are stung into cohesive action to finally deliver an effective modern update to the Treaty, thus helping space commerce, space debris management, non-appropriation and most importantly, preserving and enhancing the strength against space weaponization.

So, how can we possibly maintain such confidence? … especially since most space lawyers nowadays are primed with the response, “the non appropriation principle is a customary norm/rule that applies to individuals and companies as well as Nation states”.

Well, we say ‘not so fast!’…

I think we all now agree that the ceiling for the non-appropriation principle is a customary norm or rule.

Yet, if we look at how that status might be achieved, we see it comes with other requirements and has been based on little evidence of customary use and poor quality primary sources.

How so?…

A. Despite draft submissions from international NGOs and other legal bodies to have non-national entities (companies and individuals) specifically included in the non-appropriation statement, the decision was made to omit these from the text (Article 2) of OST in 1967.  This creates doubt over the interpretation that the non appropriation principle does indeed, as per intention, extend to include individuals and companies.

B. The Moon Agreement is largely regarded as a failed Treaty due to the lack of space faring signatories. The reasons for non-ratification certainly include concerns about the equitable sharing of benefits from use of land/resources, but also the explicit extension of non-appropriation to companies and individuals. This again raises a question over the acceptance of the universality of the non-appropriation principle.

C. Given the huge degree of international and national legal debate over the extent of applicability of the non-appropriation principle, one would expect there to be more evidence of this within State practice and within the text of National Space Laws which all came much later than the original OST in 1967. Indeed I can see no evidence of clarification to this issue within National Space Laws (looking at USA, Russia, China, Brazil, Japan, Luxembourg). Russian law re-iterates the non appropriation rule for nations only while US and Luxembourg space laws put further dents in the principle through their legitimizing of commercial celestial mining.

Now we should say here that we agree that the US simply had to generate their own law in order to make any progress with commercial space exploitation plans. In nearly 50 years of debate and wrangle, COPUOS had not managed to update the OST to address the obvious omissions and the growing irrellevance to modern commercial space programmes. So we agree it was needed, but at the same time we must acknowledge that there will be, in addition to the positive commercial reassurances, a negative series of consequences also. These consequences have EVERYTHING to do with the infringement upon the non-appropriation principle and the OST requirement that the benefit from use of resources should go to all countries.

Now the dust hasn’t quite settled from this big event and tensions will certainly rise when US companies actually start mining an asteroid. For now, it appears that mainstream academic space lawyers think it might be possible to accommodate the US Space Act without much collateral damage. We disagree… whilst supportive of the US in all this, we must argue for common sense here … to accept the terms of the US Space Act is to substantially reduce the overall strength of the non appropriation principle … and that includes its core strength against sovereign appropriation.  Now, I am not necessarily saying that is a bad thing … it is what it is.

Although it can be argued that the withdrawal and ownership of resources from a celestial body does not constitute an infringement upon non-appropriation (as per the statement in the US Space Act), we argue that to say this is hokum! This is the trouble with “young law” such as Space Law. So many different interpretations can be made to suit many views, often completely opposed. In this case, the US Gov is applying the principle “what is not expressly forbidden is permitted” to its fullest degree!

US miners will have the right to remove all resources from an asteroid or a planet. They specifically include water and minerals (that’s most of the planet or asteroid you know). Now, this is absolutely like having a communal childrens’ swimming pool, then along comes one of the parents with a self made declaration of his right to remove “tiles and water” for his own commercial uses. He drains the pool and takes 70% of the tiles, the remainder being broken in the extraction process, thus leaving the other families with an open hole containing dangerous debris. Now that has got little to do with “the tragedy of the commons … its a fox in a hen house!”  Now perhaps we are being a little over dramatic there, but seriously?…. have you seen any modern mining installations on Earth?  They are massive, cover a wide area which must be sealed off from public access (for health and safety reasons amongst others) and involve the eventual removal of most of the useful  land to leave only waste and debris.  Now that, friends, is appropriation … all day long … or the law is an ass.

Here’s some further evidence of the lack of state practice wrt the non-appropriation principle.  Well, whilst China put an end to the daughter company of Lunar Embassy (because of quasi-fraudulent activity in selling deeds to the Moon), the state of Nevada, US, is quite happy to permit the Lunar Embassy to continue this questionable practice as long as it pays its taxes and fees. This is probably the difference beween a socialist and capitalist World view, but also suggests a varying interpretation as to the strength and extent (and even relevance) of the non-appropriation principle.

D. The Case law and other Primary Sources that are available to provide support for the customary nature of the non-appropriation rule, are mostly of poor quality. With respect to the most highlighted legal cases: Nemitz V US (poor quality submission and Court only mentioned that Space law did not provide for his claim; it did not say it prevented his claim); Langevin lawsuit (Canada … thrown out because of absolutely no legal basis … no real comment on the strength of space law of the non appropriation principle as applied to the plaintiff), Lunar Embassy license suspension in China (the company was trading in celestial deeds. There was a mention from the court that nobody (nations or individuals therefore) could rightly own celestial land and the OST was quoted without further explanation. This last case has already been mentioned above. In none of these cases was the non-appropriation principle properly described, nor applied with any substantial explanation. In all 3 cases, there was no reasonable basis in law for any of the ownership claims, less still for the right to sell deeds (the last case).

All this shows that we are dealing with a subject of law that really didn’t exist until 50 years ago. It is incomplete and in some areas (such as this area we are entering) it has been scarcely exercised and only minimally tested. Thus there was always room for ‘strong players’ to assume their preferred interpretation and bullishly persuade (coerce?)  others of its validity….

When it suits, the principle “what is not expressly forbidden,  is legally permitted” is certainly invoked, as per the pro-military interpretations of OST Article 4 and also in limiting the scope of the non-appropriation principle when it comes to mined resources (see US Space Act)…. and yet it can be dropped also when it suits (the NASA and US State Dept response to the Nemitz asteroid claim was to flatly say nobody, including individuals, could lay claim to a celestial body. They were clearly happy to role out the non-appropriation principle all the way in that case. Interestingly, the case was poorly presented and so in court we see that space law was not really tested. Suffice to say the court did not go so far as to say that space law prevented his claim, it just didn’t provide for it.

Thus, Space Law is crying out for a defining moment in court to test and maybe assert the non-appropriation principle. Instead of running scared from us, the COPUOS member states should appreciate our right to due process and relish the opportunity to see their space laws in operation (but of course, the reason they are currently so twitchy and reluctant to discuss our claim is that they are genuinely concerned that it will surmount their weak space laws and thus pour scorn and embarrassment upon COPUOS. Well, we dont want to harm COPUOS at all, but we do want to JOLT them into action (to update the OST), thus we are prepared to risk some discomfort to them in order to focus their minds and efforts.

E. Despite the issues stated above, we do still believe that  skilled space lawyers can successfully argue for the common norm status of the non-appropriation principle; this also despite there being no ratified clarification of the wider extend of its applicability. Yet, these lawyers could only feasably defend this common norm status (with relevance to individuals & companies), if it is supported, as intended, by articles VI and VIII of the OST.

Now one might expect a celestial land claim to be based not only on administrative governance activity, but also direct activity within space to control, modify, enhance or prepare the celestial land that is claimed. Articles VI and VIII of OST would bring in National responsibility for the in-space activities of its citizens (individuals or companies) and for the in-space objects controlled by its citizens (remote robots, transportation, habitation, tools etc).  Thus with national responsibility comes the non-appropriation rule.

However, as per accepted proof criteria for actual possession of difficult, barren land (wrt land acquisitions under modern International law), we can effectively claim possession from a distance, as long as we can demonstrate some measurable efforts to exclusively control and/or benefit the land claimed.

So our actions are Earth based (Mars benefits from the very small but positive effects from this) and no objects are sent into space. In physics, photons are defined not to be ‘objects’ but rather massless particles or waves … an almost unique status.

Thus, articles VI and VIII do not apply here. In the absence of  applicability  of these 2 articles, the non appropriation principle falls down.

Now this is not just a slick trick. It is entirely true to say that explicitly, there is absolutely nothing in Articles II, VI or VIII (OST) that bars our Mars land claim.

We say that if a space lawyer or Judge were to hold that our claim, whilst not infringing on the written articles in OST, did still come up against the expanded, unwritten customary rules of the OST, then he/she would be obliged to opine that the US Space Act demolishes the OST!

There is further reason to reduce the applicability of the non appropriation principle to our claim. Normally, an individual or company would require to have its land claim registered/ratified or approved by the relevant Nation. This process would therefore bring in the non-appropriation rule again. Once more, however, it is not striclty applicable to our claim. We do not seek national registration or approval (nor do we NEED it … there are no Nations in existing ownership of the land and no National neighbours to have recognise our borders). Mars, in its entirety, is a discrete plot of land! So instead, we seek legal due process in an international court and seek title registration approval from the UN (COPUOS or GA).

Just to reinforce the last point, note this from the UN’s Guiding Principles for Business and Human Rights:

“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction”.

A linked issue… concerning State responsibilities (with respect to a “national individual’s” actions which have international ramifications):

“Without a breach of international law there is no reason to consider whether a state is responsible for the actions of a non-state actor.”
*

** Now this area could still get messy, but we think we can get through it… “Can individuals now claim new international/celestial land without a claim of sovereignty?” [YES, we say]. “Could celestial title deeds be awarded to an individual or company without requiring allocation of sovereignty?” [Uncertain: to form a new “state,” a permanent population would probably be required, so that’s not an option at this time. Stateless, titled deeds going to a stateless individual(s)? … that’s possible]. So does that most likely leave us with stateless possession which cannot be converted into titled ownership?”… its tricky, but we say No (The Arctic Islands, especially Spitzbergen, give a great example of how this can work). We say it should work even better with our proposed solution, that being a Celestial Land Trust held under UN Trusteeship. Now all this might be an interesting area for detail-loving legal wranglers, but we say that if this is the final stumbling block, we will easily crush it.

5/ Common Heritage of Mankind and The Commons:

It should be stated here that we strongly believe that our Mars land claim can accommodate the requirments of Article 1 of the OST… namely free access and use of the claimed land is available for all, for the benefit & interests of all and is the province of ‘Mankind’.

Thus, if the Court requires it, we can accept the claimed land in the form of common land with all common rights as descibed above. Do note that in UK it is entirely possible to claim and buy common land (with the associated restrictions). Other countries may display variants of this (eg. Open range in USA).

Does this acceptance not create unfair and damaging limitations to the possible profitable outcomes for our co-claimants whose small fees are aggragated to fund this legal registration process? … No it does not … we will explain this later in this piece, but remember also that our primary goal here is celestial safety through an OST update and ideally, UN Trusteeship of celestial lands and near-space (solar system).

Ah, so that leads nicely to the UN Trusteeship issue. We say that through our successful registration of title deeds to land on Mars, the awarding court/registry will (as per our registration application and Declaration of Intent) place the titled land into Trust (The Mars Trust) with UN as Trustee. If the UN refused (very unlikely!) then Dr Phil Davies would assume the trustee role.  All claimants become contingent beneficiaries. Thus we will have effected UN Trusteeship of Mars Land. Thus under UN control, any associated mining contracts could be agreed and managed with appropriate limitations. The wider Martian lands would be protected and held in Trust for all humanity, as per the Common Heritage of Mankind. Thus we would have delivered actual implementation to another key principle in space law.

6/ The benefits keep coming:

Athough UN Trusteeship may not be optimal in the considerations of all space faring nations, it could prove very workable and certainly provides some organization and structure to a very uncontrolled and potentially dangerous situation. The benefit is further magnified if the UN manage to update the OST in line with the Mars Trust obligations. Simply put, if within 10 years the UN effects an OST update to the satisfaction of its General Assembly, then it may acquire all shares in the Mars Trust through a nominal fee payment to each conditional beneficiary (land claimant). This nominal fee payment shall be just $1000 in year one, but doubles annually thereafter, such that each payment would be $1 million after 10 years. Thus, if it acts early, the UN gains full control over the Mars Land in Trust for a bargain price (but still a decent dollar reward for our land claimants). It will also have managed to successfully update the OST. Whilst not binding, our expectation would be that this update would include some equitable framework for commercial exploitation (perhaps similar to the 1994 Agreement on Implementation of LOSC part XI), directions for space debris control and management, clarification on the non appropriation principle, plus preserved and new strength against space weaponization.

In this manner we would have initiated a process that resulted in a much safer, fairer but still commercially dynamic and rewarding space environment. UN Trusteeship may then be expanded to include the whole solar system, or perhaps a new International regulatory body will be created.  Our hope for UN Trusteeship was for the appointment of a space savvy, nimble, space council with effective decision making structures. However, we can accept that in the longer term it may be better to move this regulatory role to another new international body. In the short to medium term, the UN Trusteeship model should serve us well (it did OK for most countries it managed under the Trusteeship council). We know that one major concern here for the established space faring Nations might be the perceived reluctance of UN to promote a more ‘market friendly’ regime. Well, those concerns may be valid enough, but the example of the 1994 Agreement (LOSC part XI) does show the UN capable of appreciating the need for commercial development and reward.

So, with respect to Space law, we believe we can surmount the mild resistance provided and successfully advance our Mars claim. With a very safe, controlled and optimistic outcome (if registration application successfull), an International Judge may decide to apply the lower proof bar that is acceptably required for Actual Possession of difficult barren land (rather than uplifting the requirement because of strategic value of Martian land)… and thus we may succeed in all our goals.

That 100% success would mean celestial safety and vibrant (but fair & controlled) space exloration and exploitation, UN Trusteeship (at least in short-medium term), plus a very good dollar reward for all our fellow Mars land claimants ($1000 – $1 Million, depending on how quickly UN COPUOS get their act together in updating OST).

Ok, so what happens after 10 years if the UN hasn’t updated the OST or refuses to pay the nominal fees to the beneficiaries/claimants?…

Well, in that case the Trust is dissolved and the Mars land is divided amongst all the land claimants as per our Declaration of Intent. Those holding Preferential land claims (not many, we anticipate), will be allocated the land requested, whilst the majority of land will be awarded by lottery. All claimants will get a land title award in this case, varying from 25 Sq Km to 100 Sq Km (yes, they are massive plots).

Now it is quite likely that the awarding court/registry will prescribe that all owned land is still “common land” with the public rights as described in Article 1 of OST. This can be accommodated. We can reassure our land claimants that at some future time (perhaps not very distant at all), a mining installation (or other resource driven industry) may be using or planning to use their lands. Despite the common land status, such commercial use will become tolerated within international law (it probably already is) and you can be sure that the companies involved will want to buy the common land title from the existing owner … for a very decent price! Hence those people who have joined our venture, not for the political goal of celestial safety, but by way of a very speculative investment, could be very well rewarded should we be successful in gaining first registration of the Martian land.

Note also:  If our route to due process is blocked for the foreseeable future (see the flowchart below: stagnation), that still leave us and our fellow land claimants with the first ever legally valid claim to land on Mars.  In such a likely situation, future international law will probably change to routinely accommodate claims of celestial appropriation.  Our claim would sit at the front of the line/queue, being the first to have demonstrated validity.  So the future descendants of our current Mars land claimants may eventually gain title registration to the land claimed!  We see this as the PROBABLE outcome!

7/ So as well as aiming for an OST update to preserve celestial safety (the weapons issue remains most important here), we are determined to get a great outcome for our co-claimants, who after all, are funding the legal process.

8/ OK, time to be frank … how do WE really think we will fare when we do get our “day in court?”

Well, we will gather a small posse of super-savvy space lawyers to assist us in preparing for, and then delivering, an irrepressible presentation in the International Court. From the loose outline you have read above, you can already tell that we do have a decent amount of ammunition. We will need to use it wisely.

The format will clearly be important … will this be a Court acting as a “Celestial Registry” or will it act in Arbitration, with us on one side and a State Party (or even the UN!) on the other, both consenting to abide by the decision?

Without giving away much in the way of strategy or tactics thereon, we can say the following:

a> Irrespective of the format, we are likely to be required to present our claim, supported by written evidence, witnesses and verbal presentation. In this we might benefit from the element of surprise. Previous cases which have touched on this legal matter have been very poorly presented and required very little application of “space law”. So the court may have little expectation for what it is about to receive!

b> We really are not too concerned about the strength of our claim when held against “space law”. We are very confident that we can avoid the applicability of the “non appropriation principle”.  We are also therefore confident that the open legal process will publicly show (hopefully in the judge’s clear words) just how weak the space law / OST is against our claim. It is via this public denouement that we hope to sting COPUOS into a cohesive effort to do something very important: “Update the Outer Space Treaty!”

c>We dont require to win our case (ie. actually get title registration to land on Mars) in order to get to our core goal (see point <b> above), but we will try hard … not only because our fellow land claimants would expect us to, but that a successful award of title would lead to UN Trusteeship, which could provide great stability in the short to medium term and will hopefully act in a fair but market friendly manner.

So, to actually win title registration within 10 years?… its gotta be a long shot (longer term offers much bigger opportunity) … but we’re definately in with a shout!
SO DONT MISS OUT!… Stake your claim to land on Mars and help us Save The Space Treaty … JOIN US NOW!

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US SPACE LAW: Another conceptual analogy…

So here is a straight question to any space lawyer. …

How can you honestly say there is not a hint of appropriation about mining an asteroid and keeping the extracted minerals for your own profit?…

The US Space Act says it is fine for their miners to do just that… and that they are not appropriating any of the planet/asteroid. Only once the mineral/water is removed from the asteroid does the miner appropriate it (then it does becomes his!!!). The IISL thus accepted the possible legality of US Space Act and still suggests that the celestial bodies’ special status as res communis is preserved (open access and use for all, with benefits going to all).


I have often heard the following completely wrong analogy being made by US space lawyers… they say their new law just allows them to do in Space what fishermen are allowed to do in our oceans… remove resources for commercial gain. Well, the obvious thing here is that fish, like grass, is a replenishable biological entity. As long as not over-grazed or over-fished, the activities can be continued to benefit all. The US Space Act, rather unwisely, states that their law does not apply to living/biological entities (the only things that are replenishable). So they are removing something that cannot be replaced… it is lost.

The best, most completely accurate analogy I can now manage is this (it addresses the issues raised when the US Space Act confronts Articles I and II or OST):

Think of Space exploitation being like an expensive elite sport that only a few countries can afford to produce teams for. I’m thinking fast-jet aerobatics (red arrows etc)….

Think of a world cup jet aerobatics event held in Dubai. Only USA, Russia, China, India, Brazil and France have felt able to field a team in this expensive sport. The Chinese, Russian and Brazilian teams are state entities, the French and Indian teams being part state sponsored and part commercial. The US team is a commercial venture with State approval and regulation.

The spectators, in the heat of Dubai, frequent the drinks stalls which are mostly manned and privately owned by rather poor local tradespeople.

In the main aerodrome hangars and aircrew rest-rooms, there are cooled water dispensers everywhere, for the free use of all aircrew and ground-crew (mechanics etc)…. but not for spectators.

All competing teams have been visiting the water dispensers quite frequently because of the heat. So the Russian Ground-crew Chief issues each member of his team with a 3 litre personal flask and directs them to go to the nearest dispensers and fill their flasks (in order to avoid the repetitive, time wasting journeys to and from the dispensers). 

Now this action completely empties 5 of the nearest water dispensers. Most of the other teams are annoyed by this, as they now have further to go to the nearest functioning dispenser, plus losing valuable competitive time in doing so. 

The well funded US team has completed its performance and is by now on the verge of victory. The aircrew watch the final display of the French team from the comfort of a plush, communal aircrew restroom. The US lead pilot then produces a document from the US state Dep’t. It entitles him and his team the opportunity to earn themselves a bit of extra beer money (to help with the expected victory celebrations later). On his direction, the US aircrew begin dismantling all the water dispensers in the recreation rooms and restrooms.  They carry the 10 litre water bottles outside to the wealthiest of the public drinks stall owners. They sell all twenty of these big containers to this propriator, for just $100 . That’s enough for their beer money and they return happy to their restroom. The stall owner is now able to undercut his rivals’ prices. He thus goes on to have a great day, but some of these rivals suffer a poor outcome in what is a difficult low margin business. One or two might even go bust.

The other teams complain about this to the “World Enabling Aerobatics Committee” (WEAC), the multinational body which writes the rules for the competition. The US team protest in reply that they were benefitting all spectators in providing more water which reduced the prices for all. The Team also produces the document from US State Dept which states that the US team is permitted to remove the communal water containers from the dispensers, sell them elsewhere and keep the profits gained. On reading this document, WEAC is nervously reassured by the last paragraph in the document, where it states that despite all this profiteering, the USA and its Team are definately not laying any claims to the entire aerodrome or Dubai itself. ….Phew, that’s alright then …. all is fine!

Now what the Russian team did might have annoyed the other teams, but I dont think we can say they illegally appropriated the communal water (this is more typical of “the tragedy of the commons” model). 

The US team however, removed the water bottles containing the communal water and sold them to an outside market for their own gain… and in the process of doing so, dramatically affected the situation in the outside market. Even in a world of smoke and mirrors, we can see that’s appropriation…. and probably not ‘legal,” despite the document from US State Dep’t. 

Now, if WEAC just lets this roll on without admitting any problems (as they are doing), you can clearly see that the other teams might in future try a few cheeky tricks of their own. Rivalries and animosities will deepen. Collaborative international aerobatic training exercises will cease, being replaced by protectionist national programmes with military applications. There is no control or authority coming from WEAC …. things are getting messy.

My point is not to have a go at the US. Their US Space Act was indeed needed and long overdue …. but we all have to be mature enough to say that it does suggest appropriation (to some degree, even if they were to use the resources to produce a cure for cancer which they distribute to the world via not-for-profit programmes!). In sensibly admitting that some ‘mild’ appropriation is involved, there exists a new need to update the space laws accordingly (OST) and form some overarching regulatory body (or UN Trusteeship in the short-medium term, as we do advocate).

When all you have to work on is the frustrating 100% consensus voting structure in COPUOS, you need to sting them with something. Our claim might just help (in addition to other people’s efforts) to do the trick.

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PAUSE FOR THOUGHT AND A SPLASH OF ETHICS:

Smoke, mirrors and a big old emperor in new clothes:

Whats’s the bottom line in all our shouting for space law updates?… well, for one thing, intergovernmental bodies like the UN (COPUOS included) appear designed to stifle any earnest and imaginative talent. Committees that operate by near absolute consensus must be a nightmare to endure. I understand that consensus is, by design, a slow process that allows a hearing for everybody, a chance for tempers to cool and crises abate. However, for maybe 20 years there has been a growing need for COPUOS to act decisively on commercial space law development and a plan for practical celestial governance. But COPUOS, with its bulky membership and low motivation for achieving consensus, is paralysed.  I would expect the elite within governmental service to either briefly endure, or steer well clear of such places. Yet, right now we need all the zest and intelligent cohesive spirit that these state delegates can muster. They also must, by mandate, shoulder the requisite power/responsibility to effectively negotiate in order to do anything really progressive. That normally requires some concessions from the more powerful nations, such that legal and/or commercial advancements come with fairness and clarity.

The truth right now is that a fair but market friendly framework does need to be incorporated into treaty.  It is clearly best to include that framework into an update to the Outer Space Treaty… something that would preserve the Treaty’s wider strength against weapons etc. The trouble is that these state delegates to COPUOS have become fully assymilated  “committee pawns”… they no longer strive for the “impossibility” of a new treaty;  instead they fudge out new soft agreements (non binding) and rely on sympathetic academics to help shape unratified “customary law” to accommodate the path of least resistance. Yet the path of least resistance is not always the most natural interpretation of a treaty or law, it is sometimes that which accommodates the viewpoint of the most powerful. Now that’s nothing new! … but we’d like that to change.

What we really want to change is the notion that hard law and treaties are a bad thing. They only become cumbersome and outdated when you dont update them! We think it is a necessity to have a responsible governing body with applicable modern hard law for current space matters. Space law is too young a subject (50 years barely), without any testing case law for support, to rely on a fluffy framework of unwritten, disputed customary norms, soft laws and guidelines. Indeed, the first time the customary norm of non-appropriation came up against a proper opponent, an American space miner, it backed down whilst still trying to keep a brave face. Surely it would be better to encourage the miner with a clear, simple contract under independent governance that encourages his commercial opportunity and reward whilst still safeguarding him, celestial bodies and the rights of all humanity. So we absolutely need COPUOS to somehow regain the cohesive spirit of 1967 (50 years ago the OST came into force) and somehow manage to prescribe the treaty updates that are so badly needed. COPUOS can feasibly strike the consensus rule in favour of majority rule, but has never done that to date. It might actually require UNGA to bypass COPUOS in order to produce a workable resolution on all this (as occurred in 1982, concerning the use of satellites for TV broadcasting).

So, what do you think?…can we solve the urgent problem of space debris with all those different bits of soft law from multiple sources (which can resemble debris in itself)?  Can we afford to let die the the only hard law stopping “nukes” in space…and trust in new non binding agreements and codes of practice?  Will they protect us all?

We say…. “without some governance and a proper spine of modern hard law (such are especially needed in this young, dynamic arena), these soft laws and customary norms are just an exercise in smoke, mirrors and a big old emperor in new clothes.”

Now, whilst I have no doubt that the first 20 years of space mining projects will be small scale, explorative and scientific, it would be wise to have some governance framework in place for the future. See below…

Guiding Principles on Business and Human rights (UN … 2011):

“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction”. … [sad but true].
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Implementing the UN Guiding Principles on Business and Human Rights (UK Gov…Updated May 2016)
The State’s Duty to Protect Human Rights:
Human rights obligations generally apply only within a State’s territory and/or jurisdiction. Accordingly, there is no general requirement for States to regulate the extraterritorial activities of business enterprises domiciled in their jurisdiction, although there are limited exceptions to this, for instance under treaty regimes. The UK may also choose as a matter of policy in certain instances to regulate the overseas conduct of British businesses…..  [so 5 years on from the UN’s GP there’s no shift to regulation or even proper national governance… and the UK is one of the more committed developed nations on this issue!]
*

Injustice incorporated (from Amnesty.org):

Companies operating across borders are often involved in severe abuses, such as forced labour or forcibly relocating communities from their lands.

Unsurprisingly, abuses are particularly stark in the extractive sector, with companies racing against each other to mine scarce and valuable resources. Traditional livelihoods are destroyed as land is contaminated and water supplies polluted such as in Ogoniland, Nigeria. The impact can be particularly severe for indigenous peoples because their way of life and their identity is often closely related to their land.

Affected communities are frequently denied access to information about the impact of company operations. Meaning they are excluded from participating in decisions that affect their lives.

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Now the point of all that is to show you that worldwide, when it comes to international commercial development, ‘soft laws’ and non binding guidelines are the current way ahead. But are they?… Does this mode of soft governance work?… Maybe in some sectors, but clearly in the “extractive sector” (and many others), there is cause for great concern.

It is this very sector that we are inviting into space, to mine resources responsibly, with consideration of providing additional benefit to all humanity… and this is being done largely contrary to (or certainly not “in keeping with) existing space laws … such that in order to make it alright, the responsible nation (US) passed a law to say “go for it guys, its all yours!… and ours!”

Finally, we must state that we are actually very supportive of the US in their introduction of the US Space Act. Its been a long time coming. It is well written (despite the denial of any celestial appropriation) and does what it needs to do. However, it is the job for COPUOS and independent space law bodies/institutes to stand up and honestly appraise the status of the non appropriation principle and OST should the US Space Act be accommodated. Instead, there appears to be a soft acknowledging of US power and leadership, such that the Act must be accommodated without any admission of collateral damage incurred. That amount of rule-bending just doesnt help. It kicks the problem down the road. Better to admit that that they do see some hint of appropriation in the US Act and make recommendations for a governance regime and Treaty updates which are long overdue.

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