We have decided to study, for this new Space Law article on Space Legal Issues, telepossession and space law. In law, telepossession is the right of ownership of a resource based on telepresence rather than physical proximity. Telepresence refers to a set of technologies which allow a person to feel as if they were present, to give the appearance of being present, or to have an effect, via telerobotics, at a place other than their true location.
Telerobotics, a combination of telepresence and teleoperation (operation of a system or machine at a distance), is the area of robotics concerned with the control of semi-autonomous robots from a distance, chiefly using a wireless network (like Wi-Fi, Bluetooth, the Deep Space Network…) or tethered connections. The term gained importance in maritime salvage following the case of the S.S. Central America.
The case of the S.S. Central America
S.S. Central America, known as the Ship of Gold, was an eighty-five meters long sidewheel steamer, operating between Central America and the eastern coast of the United States of America, during the 1850s. The ship sank in a hurricane in September 1857, along with most of its passengers, and almost fifteen tons of gold, contributing to the Panic of 1857, a financial panic in the United States of America caused by the declining international economy, and over-expansion of the domestic economy.
In the immediate aftermath of the sinking, greatest attention was paid to the loss of life, which was described as “appalling” and as having “no parallel” among American navigation disasters. The ship was then located using the “Bayesian search theory”, the application of “Bayesian statistics” (probability expresses a degree of belief in an event) to the search for lost objects. A remotely operated vehicle, a tethered underwater mobile device, was sent down in the 1980s, and significant amounts of gold and artefacts were recovered and brought to the surface.
Thirty-nine insurance companies filed suit, claiming that because they paid damages in the nineteenth century for the lost gold, they had the right to it. The team that found it argued that the gold had been abandoned. After a legal battle, most of the gold was awarded to the discovery team in the 1990s.
The basis for a claim of telepossession was the operation of robotic workers at the submerged site, where they performed the tasks of a manned crew of salvage workers. These telepossession robots worked to secure the site, provide for the management of the site, and retrieve the gold from the shipwreck. The principle of “pedis possessio” was relied on by the claimants to press their claim for ownership of the recovered gold.
Pedis possessio, a Latin term which means “possession-of-a-foot”, is a principle or doctrine of mining law, according to which a qualified person who peaceably, and in good faith, enters a land in the public domain in search of valuable minerals, may hold the place exclusively against others having no better title, provided the person remains in continuous exclusive occupancy and, diligently and in good faith, prosecutes work towards making a discovery. This principle provides a person exploring an area freedom from fraudulent or forcible intrusions, while actually working on the site.
There are many applications to the doctrines created by the S.S. Central America litigation beyond claiming ownership to sunken shipwrecks. The doctrine of telepossession, as the above examples demonstrate, will encourage courts in the future to create other doctrines to meet the demands created by advances in technology. Domestic and international law is not impinged upon by acceptance of the telepossession doctrine. And, in fact, when situations arise in other countries, courts will be able to reach for the doctrine with open arms and readily embrace its numerous applications. Telepossession may be applied not only in regard to discovery or salvage of sunken vessels, but it may also be used to promote justice in outer space.
Telepossession and space law
Looking at telepossession and space law, telepossession could provide for a form of possession, which would allow mining and space colonisation companies to develop the extraterrestrial resources used in making space stations, fleets of spacecraft, fuelling stations and all other colonisation infrastructures. According to Richard Westfall, establishing telepossession of resources in space should involve three tasks: telepresence (visual observation of the site), telemetry (communication with and knowledge of the location of the site), and telerobotics (manipulation of the resources at the site).
Telepossessor must be able to show live video pictures of the resource site, know the resource is and be able to communicate with the equipment thereon, and demonstrate ability to manipulate the resource site presumably through purifying the ore, reducing metals, or manufacturing parts in situ. According to NASA, “In-situ resource utilization will enable the affordable establishment of extraterrestrial exploration and operations by minimizing the materials carried from Earth and by developing advanced, autonomous devices to optimize the benefits of available in-situ resources”. The three most-likely used celestial bodies in future in situ resource utilization will be the Moon, Mars and asteroids.
Telepresence also has been defined by the National Aeronautics and Space Administration (NASA). NASA’s “main aim is to perfect a technique it calls telepresence that uses a head-mounted display and datagloves to make robots mimic human movements”. This technological process of computer-generated imagery for the purpose of remotely controlling robots at a distant location, or to merely computer-generate a scene for entertainment or other purposes, has also been defined as “virtual reality”.
An interesting precedent justifying the acquisition of property through telepossession can be found in the Roman law, where a person could acquire ownership or other rights not only by his own direct actions, but also through the actions of slaves under his power. Slaves had a similar legal status as modern robotic space probes; the word “robot” itself was derived from the Czech “robota”, meaning “labour” in the early twentieth century. Roman slaves were mere instruments for their master, being nothing more than chattels, objects of property rights and having no independent legal existence as persons. Their master had the property in anything that the slaves acquired. In the absence of a statement to the contrary, a slave owned in common by two or more masters acquired for them in the ratio of their respective shares in him.
Glenn H. Reynolds agrees that claiming property by landing a robot may well be possible; he nonetheless considers that the size of the claim has to be reasonable (one can claim “the quarter of a square mile in which your robot rolled around”, but not a whole planet). Should such actions be taken, it could be believed that entities performing them may well have a legal standing to make a property claim in the presence of both animus and corpus. Of course, the validity of ownership acquisition through space telepossession is subject to the permissibility of fee simple property rights in the extraterrestrial realms. This is what can be said concerning telepossession and space law.