Space Mining and (U.S.) Space Law

About a year ago NASA has contracted with two private space firms, Deep Space Industries and Planetary Resources, to prepare for and ultimately execute missions to land on and mine asteroids for valuable resources. NASA would be able to save time and money by supplying some of the deep space missions (including International Space Station expeditions) with vital resources mined from asteroids -- water, silicate, carbonaceous minerals (platinum) and more. The profits could be huge. The raw value of the ores from an average-sized mineral-rich space object is estimated to be worth hundreds of billions of dollars.

The most innovative and disputed part of the US Commercial Space Launch Competitiveness Act is Title IV: The Space Resource Exploration and Utilization Act and the following paragraph in particular:
Ҥ 51303. Asteroid resource and space resource rights
“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”

There are a lot of different points of view of legal scholars whether and to what extent international space law has been violated or not.

According to Ram Jakhu, a professor at McGill University's Institute of Air and Space Law, the 1967 Outer Space Treaty, signed by the U.S., makes it clear that the surfaces and contents of asteroids and other celestial bodies are protected from commercial harvesting; harvesting of space-based resources must be done "for the benefit and in the interests of all countries". In his view the overarching purpose of the treaty leads to the conclusion that "there really shouldn't be any private property rights in outer space."

Ricky Lee, an Australian lawyer who wrote his doctoral thesis on the legalities of space mining, said companies are already making routine, for-profit use of limited space resources by launching satellites into low orbits, and especially into high-up geostationary orbits, of which there are a maximum number of slots available. "So the idea that commercial use of space resources is prohibited by the Outer Space Treaty... is quite simply absurd"

Looking at the relevant articles of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (also known as the 1967 Outer Space Treaty) I would like to focus on two articles of two scholars in particular, by way of a written dialogue of citations: dr. Gbenga Oduntan of the University of Kent (international commercial law expert) - article: Who owns space? US asteroid-mining act is dangerous and potentially illegal -- and professor Frans von der Dunk (Professor of Space Law at the University of Nebraska-Lincoln College of Law) - article: Frans von der Dunk, The US Space Launch Competitiveness Act of 2015, JURIST

Province and /or common heritage of mankind

Article I
The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Dr. Oduntan: “Companies may also be allowed to extract certain resources, but the very first provision of the Outer Space Treaty (1967), to which the US is a signatory, is that such exploration and use shall be carried out for the benefit and in the interests of all countries. This therefore prevents the sale of space-based minerals for profit.”

Prof. Von der Dunk: "The only area of international law where the 'common heritage of mankind' concept has been actually elaborated (…) concerned the ocean floor underneath the high seas, as per the 1982 United Nations Convention on the Law of the Sea [pdf] . However this convention needed to be considerably modified in 1994 precisely in order for major industrialized countries to ratify it. It does now allow commercial exploitation of the ocean floor subject to national licenses under a fairly summary international regime - such as could be argued to exist today in outer space with reference to the Outer Space Treaty and other applicable legal principles of international space law.”

Dr. Oduntan: "Meanwhile, the Moon Agreement (1979) has in effect forbidden states to conduct commercial mining on planets and asteroids until there is an international regime for such exploitation. While the US has refused to sign up to this, it is binding as customary international law."

Prof. Von der Dunk: "The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (also known as the Moon Agreement) (...) declared the Moon and other celestial bodies to be the 'common heritage of mankind' and called for an international regime to be developed with regard to any commercial exploitation - and failed precisely for those reasons: none of the major spacefaring nations wanted to sign on to such a regime. Thus a contrario the 'province of all mankind' can not be seen as an equivalent to the 'common heritage of mankind' requiring such an international regime before commercial exploitation might be allowed. By contrast it should be equated to the regime applicable to the high seas, where the prohibition of appropriation by either nations or private citizens of any part thereof does not take away their rights to, for example, fish or otherwise commercially exploit resources, as long as within applicable international law (such as for instance regarding overfishing)."

Appropriation versus commercial exploitation

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.” The object and purpose of this provision was to exclude all territorial claims to outer space, including the Moon and other celestial bodies."

Prof. Von der Dunk: (...) "Following inter alia the authoritative declarations [pdf] on this issue of the International Institute of Space Law (IISL), this means that no private appropriation of parts of outer space is allowable either." According to the IISL Declarations the prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim’.

Dr. Aduntan: "The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbriddled commercial exploitation of outer-space resources."

Prof. Von der Dunk: "The better view is that the unequivocal prohibition of appropriation of celestial bodies as such does not give rise to a prohibition of commercial exploitation."

Need for international regime?

Article VI

(…) The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. (…)

IISL Declarations: "According to international law, States party to a treaty are under a duty to implement the terms of that treaty within their national legal systems. Therefore, to comply with their obligations under Articles II and VI of the Outer Space Treaty, States Parties are under a duty to ensure that, in their legal systems, transactions regarding claims to property rights to the Moon and other celestial bodies or parts thereof, have no legal significance or recognised legal effect."

Prof. Von der Dunk: "The baseline approach to outer space is a general freedom, which can only be limited by international consensus (such as has occurred with respect to the high seas and Antarctica, the two other areas of human activity with which outer space is most commonly compared), and there is no explicit prohibition of commercial exploitation to start with. The only relevant requirement provided by the Outer Space Treaty is thus that of Article VI, obliging states to authorize and continuously supervise non-state activities falling within their jurisdiction."

Dr. Aduntan: "So what’s at stake? We can assume that the list of states that have access to outer space – currently a dozen or so – will grow. These states may also shortly respond with mining programmes of their own. That means that the pristine conditions of the cradle of nature from which our own Earth was born may become irrevocably altered forever – making it harder to trace how we came into being. Similarly, if we started contaminating celestial bodies with microbes from Earth, it could ruin our chances of ever finding alien life there. Mining minerals in space could also damage the environment around the Earth and eventually lead to conflict over resources."

Prof. Von der Dunk: "Thus the United States respecting the prohibition of Article II of the Outer Space Treaty, by way of the current Act provides for a first step towards compliance with the obligations of authorization and continuing supervision under Article VI of the Outer Space Treaty. This is also where the other substantive clause, Section 51302, comes in: it calls upon the US President to ensure that such authorization and continuing supervision will actually be properly provided for in the near future - that is before such commercial resource harvesting activities will actually take off. This section also and at the same time requires the President to work on the international level towards an appropriate regime for such activities, further elaborating the embryonic regime provided under the Outer Space Treaty, as the United States cannot obviously regulate this for other countries or their operators. In that sense, the Act is also an invitation to the international community to work together towards such an international regime, hopefully along the same lines as the US national one to be further developed."

Dr. Aduntan: "Space exploration is a universal activity and therefore requires international regulation."