Andrej Litvinjenko
Former advisor to Chair of Canadian Parliamentary Aerospace and Space Caucuses; International Economic Law & Policy Student at the University of Ottawa, Faculty of Law and the Norman Paterson School of International Affairs at Carleton University.

The Final Frontier
It takes approximately 664kg of fuel to get 1kg of materials to Mars or the asteroid belt (about 300,000,000km away).[1] Escaping Earth’s gravity requires expending 650 of those kilos to travel just the first 300km, impeding humankind’s exploration and colonization of outer space. The exploitation of space resources would provide us with the materials necessary to flourish in outer space. The legality of appropriating them, however, has been obscure.

While international law entitles states to “free use and access” of outer space, use cannot result in national appropriation (territorial claims) of celestial bodies like asteroids or planets. Whether appropriation of resources in celestial bodies amounts to “national appropriation” has been debated for decades.

He who dares…
Last November, the US legalized private appropriation of space resources by US citizens with H.R. 2262 US Commercial Space Launch Competitiveness Act.[2] The statute specifically disclaims that the US does not consider appropriation of resources in celestial bodies as amounting to national appropriation.[3] The debate on H.R. 2262 and space mining’s legality, however, is addressing the wrong legal question. Legality is a foregone conclusion. Rather, the debate should address the lawful implementation of space mining. In a recent paper I explored this question and identified international obligations the US must observe, providing general policy recommendations.

The Law of Space
The legal case against space mining is best summarized by the recent criticisms of legal scholars Gbenga Oduntan,[4] Senior Lecturer on International Commercial Law at the University of Kent, United Kingdom and Ram Jakhu,[5] Associate Director and Professor at McGill University’s Centre for Research of Air and Space Law.

Oduntan holds the Moon Treaty (MT) of 1979 as evidence of space mining’s illegality. Indeed, the MT does prohibit the unilateral exploitation of celestial bodies, including the resources therein. However, this conclusion derives from misapplication of international law.

Firstly, the US is not a party to the MT and thereby not bound unless some or all of the treaty’s provisions also exist as customary international law (CIL). CIL arises when international consensus crystallizes around a particular practice. CIL represents consistent, wide-spread state practice and once established, it binds all states unless they can prove they have consistently opposed its formation.[6]

The US persistently objected to the MT once it became evident the treaty sought to limit resource exploitation.[7] Furthermore, the MT cannot be sincerely held as CIL, having garnered neither widespread nor consistent consensus (only 20 states have signed or ratified). By comparison, the principle convention on space, the Outer Space Treaty (OST) of 1967, has 128 signatories/ratifications, including all major space faring nations. The treaty establishes the right of “free use and access” but precludes national appropriation. Notably, there is no explicit prohibition of resource appropriation. Under international law, state conduct is presumed lawful if there is no obligation to the contrary.[8] Investigations of alleged obligations necessitate interpreting the treaty as a whole as well as how states have interpreted the treaty through their conduct. This brings us to Jakhu’s position: space mining is against the OST’s prohibition on national appropriation.

Jakhu draws his conclusion, in part, from the comments of a French Representative speaking to the UN General Assembly in 1967 on the OST. The Representative reported that the treaty established, “prohibition on any claim to sovereignty or property rights in space.”[9] A literal interpretation of the statement is illogical. The French Representative likely meant to say “in celestial bodies” as the OST explicitly recognizes property rights in space. Namely, the OST establishes that any craft launched by a state into space remains their property.

Does the prohibition on national appropriation of celestial bodies preclude property rights to the resources therein? Some scholars argue that since private property rights only exist if a state legitimizes them, it follows that any extension of property rights into the resources of a territory implicitly appropriates the territory itself. The OST establishes that national appropriation is prohibited “by claim, by means of use or occupation, or by any other means.” In order for the prohibition to include space mining it must be demonstrated, as a matter of law, that the generation of property rights in resources is indivisible from the generation of property rights in the exploited territory. Analysis of state practice demonstrates that that is not the case. International use of common resources does not project sovereignty or claims of any kind into exploited territories. Private appropriation of resources and appropriation of territory are conceptually and legally distinct. However, as I address below, this does not mean that methods of resource exploitation could not de facto amount to national appropriation.

States routinely separate the appropriation of a resource from territorial claims to the exploited territory. In space, the International Telecommunications Union gives exclusive use rights to limited orbital spots. Use licenses, however, in no way generate sovereign or exclusive ownership of the spot. Under sea law, states can fish on the High Seas and exercise exclusive ownership of resources in their exclusive economic zone and on their seabed.[10] None of these activities amount to national appropriation of the exploited territories.

The US disclaimer in H.R. 2262 is reminiscent of the decision in Nemitz v United States. In Nemitz the Court rejected a US citizen’s claim of ownership to an asteroid but clarified that:

“This is not to say that natural persons, corporations and non-governmental entities might not be able to acquire some types of property interests in lunar and celestial property or engage in some types of private activities.”[11]

Multiple UN resolutions on outer space have been adopted since 1967. They have all upheld the general right of “free use and access of space,” making no mention of restricting space mining.[12] Finally, both the US and USSR fiercely opposed restricting resource appropriation when the MT attempted to introduce it (implying such a restriction did not previously exist).[13]

Space mining, at least by the US, is undisputedly lawful. However, this in no way implies that the states can do as they please. Contrary to Jakhu’s assertion, US space mining is not an exercise of “might makes right.”[14]

The Trillion Dollar Question
The exploitation of outer space could unleash massive economic activity. This spurs belief by some that the world’s first trillionaire will be a space mining entrepreneur.[15]  However, the belief that H.R. 2262 will lead to a lawless “wild west” is unfounded. As established, use of outer space must be in accordance with international law. This means the OST imports supplementary legal principles.

The most important legal principle concerns the use of common resources (space is treated as a commons or “res communis”). Legal entitlement to use of the commons is balanced by the legal obligation to use with due regard for the rights of others.[16]  In practice, both the no harm principle and prohibition of de facto national appropriation are applied.

The no harm principle, derived from international environmental law, is CIL and prohibits states from allowing either their territory or subjects under their jurisdiction to act or be used in a manner that harms other states.[17] This may include the generation of space debris.[18] Curiously, when China deliberately destroyed one of its satellites in a weapons test,[19] further polluting Low Earth Orbit with dangerous debris, it was not considered internationally wrongful by other states.[20] China’s act did not substantively harm other states. If future acts are challenged as internationally unlawful, this precedent may imply a high threshold for causality and/or evidence of material harm.

Any form of use amounting to de facto territorial claims is internationally unlawful and US regulators must be vigilant over operator conduct. For example, states are obligated to avoid harm to foreign property in outer space; it may be prudent to establish safety or non-interference zones. However, this could easily be abused to preclude access to resources, de facto establishing territorial claims.

The Lawful Implementation of H.R 2262
The US should introduce a vigilant regulatory framework to ensure balance between commercial interests and international obligations. The Deep Seabed Mineral Resources Act of 1980 may be instructive.[21] Specifically, the framework should ensure licensed operators mine sustainably and efficiently (prohibiting squatting on deposits). Safety regulations should enforce non-interference with foreign operators. As well, reasonable reporting requirements will be critical for effective regulation and oversight. The duty of care owed to other states is discharged by due diligence. International environmental law can be instructive for accomplishing this.

H.R. 2262’s long-term objective should be the establishment of a multilateral system between space faring countries. A starting point is a mechanism for the mutual recognition of operating licenses and property rights with other states. This will contribute towards the necessary updating of space law (which has not changed since the early 1970’s). Finally, the US must ensure that any domestic or multilateral frameworks do not substantively preclude other states from “free use and access” of outer space. As a matter of law, space is the “common province of humankind” and its benefits are to be enjoyed by all.

Notes
[1] Planetary Resources, “The Market Problem and Radical Solution,” online: Youtube https://www.youtube.com/watch?v=VLouRKHknOU.

[2] US, Bill HR 2262, US Commercial Space Launch Competitiveness Act, 114th Cong, 2015, s § 51301 (enacted) at s § 51302(a)(3).

[3] Ibid, see  s 403.

[4] Gbenga Oduntan, Who owns space? US Asteroid-Mining Act is dangerous and potentially illegal, online: The Conversation http://theconversation.com/who-owns-space-us-asteroid-mining-act-is-dangerous-and-potentially-illegal-51073.

[5] Ram Jakhu and Maria Buzdugan, “Development of the Natural Resources of the Moon and Other Celestial Bodies: Economic and Legal Aspects,” (2008) 6 Int’l J of Sp Poli & Policy 3

[6] John H Currie et al, International Law Doctrine, Practice, and Theory, 2ed (Toronto: Irwin Law, 2014) [Currie] at 47 and 116.

[7] Francis Lyall & Paul B Larsen, Space Law A Treatise, (Burlington: Ashgate Publishing Company, 2009) at 96.

[8] Report of the International Law Commission, UNGA, 56th Sess, Supp No 10, UN Doc A/56/10, (2001) 59 at 63.

[9] Ram Jakhu and Maria Buzdugan, “Development of the Natural Resources of the Moon and Other Celestial Bodies: Economic and Legal Aspects,” (2008) 6 Int’l J of Sp Poli & Policy 3 at 243.

[10] Convention on the Law of the Sea, 10 December 1982, UNTS 1833, (entered into force16 November 1994), see Arts. 87, 89, 56, and 77-79.

[11] Robert Kelly, “Nemitz v United States, a case of first impression: appropriation, private property rights and space law before the federal courts of the United States,” Note, (2004) 30 J Space L 309.

[12] Francis Lyall & Paul B Larsen, Space Law A Treatise, (Burlington: Ashgate Publishing Company, 2009) at 45.

[13] Ibid at 96.

[14] Ram Jakhu’s criticism in “U.S. Space-mining law seen to possible treaty violations” CBC (26 November 2015) online: CBC http://www.cbc.ca/news/technology/space-mining-us-treaty-1.3339104.

[15] Joanna Rothkopf, Neil deGrasse Tyson reveals how the world’s first trillionaire will make their fortunes, online: Salon http://www.salon.com/2015/05/04/neil_degrasse_tyson_the_first_trillionaire_will_be_whoever_figures_out_how_to_mine_asteroids/.

[16] Hugo Grotius, The Freedom of the Seas, (Oxford: Oxford University Press, 1916) at 24.

[17] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 35, at 241-242, para. 29.

[18] Joyetta Chatterjee, “Legal Issues Relating to Unauthorized Space Debris Remediation” (Paper, delivered at the 65th International Astronautical Congress, Toronto, 2014), [unpublished] at 1.

[19] Brian Weeden, 2007 Chinese Anti-Satellite Test Fact Sheet, online: http://swfound.org/media/9550/chinese_asat_fact_sheet_updated_2012.pdf

[20] Richard Spencer, Chinese Missile Destroys Satellite in Space, The Telegraph, online: http://www.telegraph.co.uk/news/worldnews/1539948/Chinese-missile-destroys-satellite-in-space.html.

[21] Deep Seabed Hard Mineral Resources Act, USC 30 §1411 (1980).