Space Law Has Some Catching Up To Do

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By: Michael McNeil

Humanity is at the doorstep of our next great accomplishment in space exploration—mining space for resources. However, the legality of space mining is anything but clear. With little authority from international law, countries like America, Japan, and Luxembourg, have made national laws declaring space mining a legal practice. American companies like Planetary Resources, SpaceX, and Deep Space Industries, along with companies in Japan and Luxembourg, are moving forward under their respective national laws developing the technologies to make space mining a reality.  Japan recently announced that two of their Minerva II-1 rovers successfully landed on Ryugu, an asteroid in space, and other companies and nations are not far behind.

However, counties like Russia and Brazil claim these national laws violate long held international space law principles. Specifically, the opposing countries point to the principles that prevent nations from appropriating space bodies or making territorial claims on said bodies. Further, the countries say these new laws violate the principle that require space to be used for the benefit of all nations.  These international disagreements will likely drive space law development as countries test the limits of their national laws by allowing companies to explore space mining while waiting to see how the international legal community reacts.

Why Companies Argue Mining Space Is Vital To Advancing Space Exploration Capabilities

One of the greatest obstacles to space exploration is cost.  It is prohibitively expensive to rely solely on making equipment on earth so that it can be used in space—which is the current reality.  Space exploration costs can be drastically reduced by using materials already located in space.  The economics behind the potential price reduction are simple — materials on Earth are heavy, thus leading to heavier payloads and more fuel being required.

These current cost problems can be circumvented by relying on space resources to advance humanity’s space exploration ambitions.  Scientists are testing new fuel sources, such as water in space being turned into rocket fuel. Iron, nickel, and cobalt, which are found in abundance in space, can be used for construction materials, while precious metals can be harvested and brought back to earth to be sold, thus creating a funding stream that can fuel research and development. While there are plenty of technological challenges, the legal challenge becomes creating an international legal landscape that allows for mining space that comport with the foundational principles of space law.

What Are The Legal Challenges To Mining Space

Space law is still in its infancy, and the legality of mining space is not directly addressed by international law.  The Outer Space Treaty of 1967 (“Space Treaty”), signed by more than 100 nations, including the U.S., is widely considered the “space law constitution.”  The Space Treaty states: (1) space exploration should be for the benefit all countries; (2) the use of the moon, and other celestial bodies, is to be for peaceful purposes only; and (3) no celestial body is subject to national appropriation by claim of sovereignty by any means. While the Space Treaty establishes several space law principles, it does not address whether removing, and commercializing, resources from a celestial body would constitute forbidden appropriations.

Signees of the Space Treaty disagree on whether it allows or forbids space mining, and in absence of explicit international authority on the issue, nations have started to create national laws to define the legality of mining space for themselves.  In 2015 the United States passed the Space Act, which gave the United States’ space firms,  like Planetary Resources and Deep Space Industries, the right to own and sell harvested resources from celestial bodies in space. Luxembourg followed suit passing the Space Resources Law allowing the sale and ownership of mined space resources.

WHERE DO WE GO FROM HERE

The reality is that space mining technologies are advancing faster than space law is. This means space law, as it develops over the next century, will likely be reactive rather than proactive. Until an entity mines a space resource and gets challenged in international court, the law will likely be silent, or purely academic, on the issue. Sen. Ted Cruz, the chair of the Senate subcommittee that oversees NASA, has suggested that the Space Treaty should be amended to explicitly address space mining and the property rights of resources gathered in space.

There are two similarly situated international legal frameworks worth considering, as the space community contemplates what an international legal framework for mining space should look like.  The Convention on the High Seas, which address parts of oceans owned by no nation, does allow for the harvesting of resources (fish) within its legal framework, and the Environmental Protection to the Antarctic Treaty,  which has banned mining on a continent owned by no one.  These frameworks can provide insight and guidance as space law develops in the future. Space law has some catching up to do, because the technology that will carry the world into the future will not wait.

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