What is an Ideal Framework to Regulate Exploration in Space?

When President Obama signed the SPACE Act on November 20, 2015, the U.S. government officially recognized a vision of the future that could previously only be found in the pages of science fiction. Section 51303 of the Act declared: “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled… to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law.” Effectively, the legislation declared the frontier of space to be open for business.

As fantastical as that clause may seem, the fact that at least three self-described asteroid or lunar mining companies—Deep Space Industries, Bigelow Aerospace, and Planetary Resources—had pushed for its inclusion in the final bill indicates the strong private commercial interest in bringing a real extraterrestrial mining industry into existence. But in addition to the tremendous engineering challenges such an operation would pose, the regulatory framework for extraterrestrial mining is as undeveloped as the surface of the moon.

The current international legal framework is built on the 1967 Outer Space Treaty, which explicitly placed space outside national sovereignty, declaring it to be “the province of all mankind.” The Treaty does not explicitly forbid private commercial activity; whether it does so implicitly remains a matter of legal contention. In either case, it provides no foundation for a celestial private property rights regime that is international in character. The SPACE Act does nothing more than assert the right of U.S. citizens to recover space resources on a private basis. Private actors, mainly based in the U.S., may hope that other countries will adopt the SPACE Act’s laissez-faire, first-come-first-served approach in their own legislation, as Luxembourg did in 2016 by adopting a similar law. There is no guarantee, however, that other states will adopt similar celestial property rights regimes, or recognize any such claims staked under another country’s framework. Conceivably, other states could even challenge private property claims under the terms of the Outer Space Treaty. The industry is so nascent and uncertain about its prospects that any doubts about the ability of mining companies to legally defend their claims could keep them permanently grounded.

A paper by Joseph Crombie in the Spring 2017 edition of The Journal of Space & Defense examines two possible regulatory frameworks for an international body that can serve as models for regulating an asteroid-mining industry: the International Seabed Authority (ISA) and the International Telecommunications Union (ITU).

The ISA was established as part of the United Nations Convention on the Law of the Sea (UNCLOS). Its purpose is to oversee deep-sea mining activity that takes place outside of national economic waters. One of the organization’s founding principles is that the seabed is part of the “Common Heritage of Mankind”; this principle conceptualizes the resources of the sea floor as it belongs to all humanity, given that they are located outside any zones of national sovereignty. The ISA licenses and oversees mining activities and is required to redistribute some portion of the revenues among developing countries.

The author, however, notes two issues with adopting the ISA model. One is that until very recently, deep sea mining was considered either technologically infeasible or economically unviable; the ISA has only just begun to issue exploration licenses to private firms. Hence, its framework for actual exploitation of the mineral resources of the seabed has never been tested in practice. Another is that the United States did not ratify UNCLOS, nor enter the ISA, precisely because it was opposed to the ISA’s redistributionary ethos. A previous attempt at building a framework for the commercial exploitation of the Moon, the 1979 Moon Agreement, was not ratified by any spacefaring state precisely because of its adoption of the Common Heritage principle.

The other model the author examines is that of the International Telecommunication Union (ITU), which regulates access to radio frequencies and geostationary orbital slots, both limited resources that exist outside of national sovereignty. The administrative apparatus of the ITU is minimal, constituting little more than a set of mutually-agreed upon technical rules such as the frequency bands that implement the satellite components. According to the author, the organization has come under pressure in recent years as the competition for orbital slots has increased. Because the ITU has no means of sanctioning violators, adherence to its rules is effectively dependent on a “gentleman’s agreement” between member states. It seems unlikely that such an agreement would suffice if applied to asteroid mining, an industry where hundreds of billions of dollars of mineral wealth is at stake.

Given the priorities embedded in the SPACE Act, it seems clear which model is presently favored by U.S. authorities and private industry. If every asteroid belongs to the first company that can physically claim it, then the high frontier will host a celestial gold rush, in which the enormous technical and capital requirements of mining guarantee that a handful of private actors will snap up the bounty of space. There appears to be little appetite, at least in the United States, for establishing a regulatory framework that lives up to the aspirations inscribed on the plaque the Apollo 11 astronauts brought to the surface of the moon: “We came in peace for all mankind.”

Article source: Crombie, Joseph. “Legislating for Humanity’s Next Step: Cultivating a Legal Framework for the Mining of Celestial Bodies.” Journal of Space & Defense, Vol. 10, Issue 1 (2017): 9-24.

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