This week I attended the fourth meeting of The Hague Space Resources Governance Working Group (I am an observer). After the publication of draft building blocks, I will do another post on them and the Working Group itself but in the meantime, I thought that I would take this opportunity to discuss space mining in general. This is also my PhD topic, so I do have a passing familiarity with the subject. I have previously discussed Luxembourg’s space mining law, but this will be a more general discussion, although I will, of course, discuss national legislation which will include the US and Luxembourg laws.
Took the opportunity to visit the Peace Palace, home of the ICJ and PCA
As is usually the case in space law, the first thing to consider is the Outer Space Treaty. While many articles are relevant for space mining, the three that are most pressing and will be the ones I examine in detail below are the usual suspects, Articles I, II and III. I also discuss Article 11 of the Moon Agreement which is particularly relevant for space mining despite the unpopularity of the treaty itself.
Article I of the Outer Space Treaty declares that space is free for exploration and use by all states. There is no definition of the terms exploration or use in the Treaty, therefore under the rules of treaty interpretation, codified in the Vienna Convention on the Law of Treaties we look to the plain, ordinary meaning of the terms. Use is defined by the Oxford English Dictionary as “to take, hold or deploy as a means of achieving something; to take or consume (an amount) from a limited supply” which would imply that the plain, ordinary meaning of freedom of use of space includes the ability to mine asteroids and other celestial bodies for raw materials.
However, Article II of the Outer Space Treaty prohibits national appropriation by means of use, occupation, or any other means. There is debate about what this means. There are those who argue that this means that there cannot be any space mining as resources are part of the object they are found in and to appropriate the resources would be to appropriate the celestial body and therefore violate Article II of the Outer Space Treaty. However, if resources are capable of being separated from the celestial body they are found in then it wouldn’t necessarily be a violation of article II to appropriate the resource once it has been removed from the celestial body. It is just that the state in question wouldn’t acquire any territorial rights over the celestial body being mined. This is the argument that both the United States and Luxembourg have used in support of their national laws.
Article VI of the Outer Space Treaty requires that states authorise and supervise the activities of their nationals in outer space. Many states have national legislation that provides for a method of authorising such missions. In the UK, this is currently the Outer Space Act 1986. Luxembourg and the United States have defended their national space mining laws by arguing that they need them in order to be able to fulfil their Article VI OST obligations to authorise and supervise the activities of their nationals. It is also important to note that it is via Article VI that international space law is ‘imposed’ on corporations and non-governmental organizations, however it is the duty of the individual states to ensure compliance as only states are subject to international law (there are a few exceptions to this but none relevant to this discussion.)
One potential solution to the property rights issue presented by Article II of the Outer Space Treaty is to implement Article 11 of the Moon Agreement. This calls for an international regime to be established, which would allow the granting of secure, internationally recognized property rights for space mining companies. Of course, while this provision would solve many of the legal problems facing the space mining industry, and provide them with the legal certainty and legitimacy they say they need it isn’t a politically viable solution. This is largely because of the ‘Common Heritage of Mankind Principle,’ found in the treaty. As a result, the Moon Agreement is ‘politically toxic’ particularly in the United States, and has only been ratified by 17 States (contrast with the Outer Space Treaty’s 105). Therefore, other solutions will have to be found.
There are a few other interesting questions that arise in the context of space mining. One of the big questions is what is a celestial body? The space treaties refer to “Outer Space including the Moon and other Celestial Bodies,” but nowhere is a definition of a celestial body given. There are those who argue that one of the ways around Article II OST for asteroid mining is to simply declare asteroids, or at least certain types of asteroid, to not be celestial bodies and therefore outside of the scope of Article II of the Outer Space Treaty. They argue that either small asteroids should be excluded from the category of ‘celestial body’ or that asteroids that are capable of being moved by human intervention should (there would be quite a bit of overlap between these two categories but they are different justifications and so should be considered separately.)
A second aspect of this question is that there is a clear difference between mining the Moon, mining Mars or mining an asteroid. Yet under existing space law these three locations are treated as essentially being equal and the same. Yet clearly, they are not. The Moon especially occupies a special place in our hearts, culture, and society. Interestingly in the director’s commentary for the film Moon they talk about the fact that the mining operations would take place on the ‘far’ side so that they don’t ruin the view of the Moon from Earth and that it would therefore not have been acceptable to mine the ‘near’ side. Mars and indeed several other ‘worlds’ present similar issues, in particular concern about biological contamination.
Additionally, there are a few other vague concepts in the outer space treaty, such as ‘harmful contamination’. While this has usually been interpreted as being about biological contamination it isn’t inconceivable that motivated environmentalists could use it to try to thwart mining operations. After all mining by its very nature is ‘harmful’.
Other states are discussing implementing space mining laws of their own. The international community needs to start taking this issue seriously. The ‘rules’ of the game are currently being written, and anyone with a current or potential issue needs to be part of the conversation. Fortunately, space mining has been discussed at the Legal Subcommittee of UNCOPUOS for the past two years and will be on the agenda again in 2018. Then there is The Hague Space Resources Governance Working group which has now produced a set of draft building blocks for a potential future international framework. There are other discussions in other forums taking place, and there need to be more. Space mining has tremendous potential, not least to be the foundation for a thriving space economy, because as Mark Alpert has written; “in order to go to space to stay, we have to make space pay.” Which is true, but it needs to be grounded in law; anarchy in space serves no one.
Concise Oxford English Dictionary, 1593
Outer Space Act 1986, c38, accessible at: http://www.legislation.gov.uk/ukpga/1986/38/contents
Virgiliu Pop (2001) ‘A Celestial Body is a Celestial Body is a Celestial Body…’ 52nd IAF Congress, Toulouse, France, 1-5 October, AIAA, Available at: http://www.spacefuture.com/pr/archive/a_celestial_body_is_a_celestial_body_is_a_celestial_body.shtml; Ernst Fasan (1998) ‘Asteroids and Other Celestial Bodies – Some Legal Differences’ 26 J. Space L. 33
Christopher J. Newman (2015) ‘Seeking Tranquillity: Embedding Sustainability in Lunar Exploration Policy’ 33 Space Policy 29
Mark Alpert, ‘Making Money in Space’ (1999) 10 Scientific American Presents 92, 93