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U.N. Space Treaty's Legal Gauntlet: Can Space-Miners Go The Distance?

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Nothing less than the future of the space-mining industry itself arguably rests in how the U.N.’s 1967 Outer Space Treaty is actually applied to space-mining ventures like Planetary Resources, Inc.

Mineral resources embedded in asteroidal detritus leftover from the formation of our solar system some 4.5 billion years ago, may actually come onto earth-bound metals markets in a few short years.

Forbes.com thought it would be prudent to try to clarify a few legal points related to actually seeing this industry to fruition.

For perspective, I turned to Frans von der Dunk, a professor of space law at the University of Nebraska at Lincoln and the director of ‘Black Holes’ a Netherlands-based space law & space policy consultancy.

Is current space law a potential deal-breaker for space mining?

Yes, in that it is not able to alleviate fundamental questions regarding the entitlement of mining companies to mined resources and the conditions under which various nations could license them to go ahead.

The treaty, in part, says that “states shall avoid harmful contamination of space and celestial bodies.”  Does this apply to space mining?

Yes. Private activities in space are very fundamentally subsumed under state responsibility, and even liability rests with the state(s), in case relevant space objects cause damage in an international context. They are consequently obliged to ensure that every private operator operating under their jurisdiction abides by those rules as well - which is where national licensing comes in.

Does Article IV of the Outer Space Treaty that states in part that “the moon and other celestial bodies shall be used exclusively for peaceful purposes” apply to space mining?

Yes, in principle, that applies to space mining.  After all, the idea behind the 'exclusively peaceful purposes' clause is to outlaw any aggression (in the classical law-of-nations and the U.N.-charter sense of the word) or other unauthorized use of force on, from or with respect to the moon. Unless space-mining comes to be seen as an act of aggression or threat or use of force, this Article will only, in theory, remain applicable to space-mining.

Is it true that any mining operations on asteroids or the moon would require U.N. Authorization by parties to the 1967 Outer Space Treaty?

The legal certainties and parameters that space mining would call for something which would hopefully be agreed upon by the spacefaring member states that are parties to the Outer Space Treaty.  It could take the form of an amendment of the treaty or protocol to it, or of a new treaty altogether.

How do the space-mining start-ups get around Article VI which states in part that “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”?

They can't. They need a license or other form of authorization and continuing supervision, although Article VI also means that at the international level it will be their state which will be held responsible for lack of authorization and control. That's why theU.S.has established the commercial space launch act requiring licenses to protect theU.S.interests in the international plane against being held responsible and/or liable for such private space activities.

In other words, private start-ups would not be personally responsible for violating the treaty, but the country in which they are based would be the ultimate party that is liable?

Basically, yes.  Although one further problem is that responsibility and liability are addressed separately and by different Articles of the Outer Space Treaty.  But the states are the ones that are to account of such behavior towards other states and their citizens. Formally, it does not exclude that anyone victimized by such a private operation may also try to prosecute/sue in a private capacity before one domestic court or other, but this will not really be on the basis of the Outer Space Treaty, as such.

What enforcement mechanisms are in place for the treaty?

No more than are available under the general law of nations: i.e. unilateral sanctions; withdrawal from international agreements which are beneficial to the perpetrator; or access to international courts or arbitral tribunals in as far as they have jurisdiction. Beyond that, we're talking politics:  the need for states not to be seen as flouting international and national law and to be seen as trustworthy and worthy members of the international community.

Would there be punitive monetary fines for violator countries or would an international authority actually try to stop the launch of a space-mining vehicle?

Neither, so far.  That is, punitive damages could be imposed under applicable national law, but there is no international legal regime providing for that. There certainly is no international authority at this point which could try to stop such an operation.

2010-04-The International Court of Justice (ICJ) in The Hague. (Image credit: AFP via @daylife)

Will the treaty be amended to accommodate space mining?

The experience with the U.N. Committee on the Peaceful Uses of Outer Space (COPUOS) is not very hopeful in this respect, and there certainly is no urge felt by the U.N. Member states to address this issue today.  That means we may have to wait for some actual developments (for example, Planetary Resources, Inc. announcing their first mission) before things could be really pushed forward to the necessary extent.  In theory, it could be possible to draft a relevant regime outside of the context of COPUOS --- much like the Antarctic treaty regime arose completely outside the U.N. framework. 

When will this type of space law actually be put to the test?

It is being put to the test regularly already, by impending commercial manned spaceflights, or the growing dangers presented by space debris. In some cases 'space law' responds in a hopeful fashion, with a convergence between key players allowing us to hope for appropriate elaborations of relevant elements of existing space law, in other cases I am not so optimistic.

What about allowing enterprise rights to be sold on an asteroid without actually allowing a company to own it?

That is essentially what fishing on the high seas is subject to now. The problem is that while the legal parameters and conditions at the international level as for the law of the sea have been considerably developed for space, we do not have anything beyond the rather generic provisions of a handful of space treaties. It is an excellent idea, but it should be developed within a proper legal framework in order to provide the required legal certainty to all concerned.

There have been proposals that asteroids should be re-classified as chattel (movable personal property) instead of as celestial bodies.  They argue that would clearly allow mining on these bodies.  What is your view?

If, for instance, the U.S. went ahead in classifying them as such, private U.S.-licensed companies would start working along those lines and then another nation would come in and say 'I don’t care how the U.S. defines this, we define it differently,' and we would be in trouble.  The key question is whether it is possible to interpret the Outer Space Treaty in a manner that allows for such a classification without fundamental opposition by the major spacefaring nations.

When will the vagaries surrounding space-mining ultimately be resolved?

Probably not before another decade or two, maybe much longer.