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Space Mining: Futuristic Trend & Legal Perspectives

di - 28 Febbraio 2022
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Space Mining and Global Situation
Humans have long been searching for resources to fulfill their unlimited desire. Since the prehistoric period, mankind learned to utilize stone and metal. The need of natural resources, which are limited, greatly escalated during the industrial revolution.  At the present, we are in a state of insufficiency of natural resources. Such fundamental economic problem will probably be addressed if humans can seek for more materials from extraterrestrial places, like outer space.
Asteroid mining (also referred to as space mining) is another one way to overcome the problem as such. It is not a  newly emerging activity, as it was first conducted in 2003 when Japan Aerospace Exploration Agency (JAXA) sent off a robotic spacecraft called Hayabusa to collect sample material from asteroid 25143 Itokawa. However, the project failed at the landing stage in 2005.[1] 9 years later, JAXA launched Hayabusa2 in year 2014 to collect samples from asteroid 162173 Ryugu (1999 JU3). The flight was successful, as the spacecraft made it back to the earth with a sample in year 2020. [2]
In 2016, the US National Aeronautics and Space Administration (NASA) launched the OSIRIS-Rex spacecraft to the asteroid Bennu. This is expected to bring a small sample back to Earth in year 2023.[3]
Last year, in 2021, China launched the Long March-6 rocket carrying the spacecraft NEO-01 into outer space. The CEO of the Origin Space Co., Ltd. the company which developed the NEO-01, stated that this experiment shall serve as a prototype of future space mining robots, which are anticipated to extract minerals from asteroids to support space industry development.[4] This is likely the first attempt to conduct space mining for commercial purpose.
In a not so far future, asteroid mining has the potential to serve as a way for resource-hunting to fulfill the world’s needs. This work is pointing out the advantages of asteroid mining, and examining the current legal instruments and barriers with respect to the activity, as well as offering a proposal to carry out the activity forward for mankind’s future.

Legal Frameworks
The author breaks the session into two categories, which are international law and domestic law.

1) International law

1.1) the 1967 Outer Space Treaty
This is formally called Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies which was currently ratified by 111 states.[5] Article I expresses that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, and shall be the “province of all mankind”, i.e. – the place for everyone.[6] Article II provides the probation of national appropriation by claim of sovereignty, by means of use or occupation, or by any other means in outer space.[7] Therefore, the ownership over the objects brought back to earth from outer space may be controversial. As the Outer Space Treaty does not allow national appropriation in outer space, some scholars think this principle also prohibits private sector (citizens of nations) from occupying resources from outer space. In order to fill the loophole, this side of scholars contends that the principle applies to nationals of states as well as states themselves.[8]
On the other hand, the opposite viewpoint expresses that ownership of extraterrestrial object is still lawful under the 1967 Outer Space Treaty. This opinion is based on the same principle as perceived by United Nations Convention on the Law of the Sea (UNCLOS) which prohibits sovereignty of states upon seabed[9], while it established the International Seabed Authority (ISA) to be responsible for granting a license to a state or private actor seeking for exploration and utilization of seabed.[10] Moreover, the 1959 Antarctic Treaty and its 1991 Madrid Protocol lay down the principle allowing states to extract resources from Antarctic for scientific purposes[11] without claiming of sovereign power therein.[12]

1.2) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
This 1979 Moon Agreement, Article 11, when read together with Article 1, provides that “neither the surface nor the subsurface of the moon (including other celestial bodies within the solar system), nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person.” [13] Hence, mining in outer space is theoretically impossible under this regime. However, it’s almost meaningless in practice, since there are only 18 state parties to this agreement. Major space powers, e.g. – the United States, China, Russia, and India, are also non-member states thereof. [14]

2) Domestic law on ownership
In addition to the scarce international law framework highlighted above, each country nowadays has domestic laws governing private ownership on properties residing in its territory, but not the objects beyond the airspace. Nevertheless, two countries have enacted domestic laws to specifically address the issue.

2.1) The United States of America
U.S. Commercial Space Launch Competitiveness Act which came into force in 2015 enumerates in its Section 402 that “A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained.” [15]
Date back to year 2001, there was a case involving with property right in outer space after NASA landed it NEAR Shoemaker spacecraft on asteroid Eros. Gregory Nemitz, a space activist, then filed a lawsuit arguing that the United States had occupied his property (EROS) based on his property right as registered with the Archimedes Institute. [16] Both U.S. District Court for the District of Nevada and the 9th U.S. Circuit Court of Appeals dismissed his claims on the ground that he failed to state a claim upon which relief can be granted.[17]

2.2) Luxembourg
The Law on the Exploration of Space was enacted in 2017 (Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace). Its Article 1 implicitly allows private companies to own extracted space resources.[18]
Therefore, there is no certainty on the legality of asteroid mining at the present although some states have already legalized it under their legislative power.

Opportunities and Challenges for Lawyers and Economic Development
As natural resources are being consumed every single day, finding and utilizing of new substitute sources thereof will be unavoidably needed. Asteroid mining, as another futuristic mean to seek for prosperity, could greatly create immense opportunities and challenges to mankind. In this topic, the author demonstrates only opportunities and challenges for lawyers and economic development.

Lawyers
As the doctrine of “Ubi homo, ibi societas. Ubi societas, ibi ius. Ergo ubi homo, ibi ius”, law goes wherever human goes. Humans always need rules to govern their rights and obligations in all activities which is mutually agreed so that they can live together harmoniously. As space mining is becoming a new trend activity that people are going to conduct, law, as well as lawyer, will be mandatorily needed.
At the present, compared to investment laws or business laws field, there are not many lawyers specializing in space laws or laws relate to outer space. The upcoming trend will bring rich opportunities to these lawyers and specialists. Law schools will then have to add an additional specific course on this to create space-law-knowledgeable personnel for the industry. Ultimately, lawyering market will expand.
Looking at the current situation, some movements have been being initiated in preparation of space law practice.
The Space Court was established under the Dubai International Financial Centre (DIFC) Court in 2021 purposely to solve commercial space-related disputes. In the initial stage, the Courts of Space will task an international working group of public and private sector bodies and experts to explore space-related legal innovations and to provide an outlook on potential outcomes of scenarios revolving around space-related disputes. Further stage will involve with creation of a Space Dispute Guide, encompassing guidelines to support space-related disputes as such. In addition, the agency will provide training for judges to become space-related dispute experts.[19]

Note

1.  Chottiwatt Jittprasong, “Hayabusa2: Summary of Asteroid Sample Collecting [Hayabusa2 ภารกิจเก็บตัวอย่างดาวเคราะห์น้อย สรุปแบบเจาะลึกทุกรายละเอียด]” SPACETH.CO, January 4, 2021, https://spaceth.co/hayabusa2-in-depth/. Accessed January 29, 2022.

2.  Amanda Barnett, “Hayabusa2 ” NASA Science, December 8, 2021, https://spaceth.co/hayabusa2-in-depth/. Accessed January 29, 2022.

3.  National Aeronautics and Space Administration, “OSIRIS-REx ” NASA Science, April 14, 2021, https://www.nasa.gov/osiris-rex/. Accessed January 29, 2022.

4.  Xinhua, “GLOBALink | Chinese company launches prototype space mining spacecraft” NASA Science, April 28, 2021, http://www.xinhuanet.com/english/2021-04/28/c_139912690.htm. Accessed January 29, 2022.

5.  United Nations Office for Outer Space Affairs. “A/AC.105/C.2/2021/CRP.10 – Status of International Agreements relating to activities in outer space as at 1 January 2021.” United Nations Office for Outer Space Affairs. May 31, 2021. https://www.unoosa.org/res/oosadoc/data/documents/2021/aac_105c_22021crp/aac_105c_22021crp_10_0_html/AC105_C2_2021_CRP10E.pdf. Retrieved on January 29, 2022.

6.  Department of Treaties and Legal Affairs of the Ministry of Foreign Affairs, Kingdom of Thailand, “Space Law [กฎหมายอวกาศ]” Department of Treaties and Legal Affairs of the Ministry of Foreign Affairs, Kingdom of Thailand, n.d., link. Accessed January 29, 2022.

7.  United Nations Office for Outer Space Affairs. “2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” United Nations Office for Outer Space Affairs. N.d., https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html. Retrieved on January 29, 2022.

8.  John G. Wrench. “Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining.” Case Western Reserve Journal of International Law (JIL). Volume 51, Issue 1 (2019). https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2546&context=jil. Retrieved on December 13, 2021.

9.  John G. Wrench. “Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining.” Case Western Reserve Journal of International Law (JIL). Volume 51, Issue 1 (2019). https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2546&context=jil. Retrieved on December 13, 2021.; United Nations Convention on the Law of the Sea, Article 137

10.  International Seabed Authority (ISA), “About ISA”, International Seabed Authority (ISA), n.d., https://www.isa.org.jm/about-isa. Accessed January 29, 2022.; David Shukman, “About ISA”, Deep sea mining licences issued, July 23, 2014, https://www.bbc.com/news/science-environment-28442640. Accessed January 29, 2022.

11.  Madrid Art.7

12.  John G. Wrench. “Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining.” Case Western Reserve Journal of International Law (JIL). Volume 51, Issue 1 (2019). https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2546&context=jil. Retrieved on December 13, 2021.

13.  United Nations Office for Outer Space Affairs. “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.” United Nations Office for Outer Space Affairs. N.d., https://www.unoosa.org/pdf/gares/ARES_34_68E.pdf. Retrieved on January 29, 2022.

14.  United Nations Office for Outer Space Affairs. “A/AC.105/C.2/2021/CRP.10 – Status of International Agreements relating to activities in outer space as at 1 January 2021.” United Nations Office for Outer Space Affairs. May 31, 2021. https://www.unoosa.org/res/oosadoc/data/documents/2021/aac_105c_22021crp/aac_105c_22021crp_10_0_html/AC105_C2_2021_CRP10E.pdf. Retrieved on January 29, 2022.

15.  CONGRESS.GOV, “H.R.2262 – U.S. Commercial Space Launch Competitiveness Act” CONGRESS.GOV, May 12, 2015, https://www.congress.gov/bill/114th-congress/house-bill/2262. Accessed January 29, 2021.

16.  Xploration Station, “Man Sues NASA For Landing On His Asteroid” Xploration Station, N.d., https://www.xplorationstation.com/stories/Man-Sues-NASA-For-Landing-On-His-Asteroid. Accessed January 29, 2021.; Amanda Barnett, “NEAR Shoemaker” NASA Science, September 9, 2021, https://solarsystem.nasa.gov/missions/near-shoemaker/in-depth/. Accessed January 29, 2021.; Wayne White, “Op-ed | The Space Pioneer Act” Space News, November 11, 2014, https://spacenews.com/42436the-space-pioneer-act/. Accessed January 29, 2021.; Permanent, “The Archimedes Institute” Permanent, N.d., https://spacenews.com/42436the-space-pioneer-act/. Accessed January 29, 2021.

17.  Virgiliu Pop. Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (Berlin: Springer Science & Business Media, 2008), 43

18.  Library of Congress, “Luxembourg: Law on Use of Resources in Space Adopted” Library of Congress, n.d., https://www.loc.gov/item/global-legal-monitor/2017-08-22/luxembourg-law-on-use-of-resources-in-space-adopted/. Accessed January 29, 2021.; The Government of Luxemburg [DU GRAND-DUCHÉ DE LUXEMBOURG], “Law of 20 July 2017 on the exploration and use of space resources [Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace]” DU GRAND-DUCHÉ DE LUXEMBOURG, July 28, 2017, http://data.legilux.public.lu/file/eli-etat-leg-loi-2017-07-20-a674-jo-fr-pdf.pdf. Accessed January 29, 2021.

19.  Courts of the Future of DIFC Courts, “Courts of Space ” Courts of the Future of DIFC Courts, n.d., http://www.courtsofthefuture.org/#courts-of-space. Accessed January 29, 2022.

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