Introduced by Elena Carpanelli
In light of rapid technological developments, prospecting and extraction of space resources have moved away from the realm of science fiction and are about to become a feasible reality. Two private companies – Planetary Resources and Deep Space Industries – have publicly announced detailed plans to execute missions to mine asteroids within the next few years and others are likely to come into the picture soon.
Notably, while asteroid mining is still a ‘work in progress’, some steps have been recently undertaken at the domestic level in order to establish ad hoc legal frameworks that promote the commercialization of outer space resources. On 25 November 2015, former US President Obama signed into law the US Commercial Space Launch Competitiveness Act, which authorizes US citizens to possess, own, transport, use and sell any asteroid or other space resource they manage to extract (s 51303). A few months later, Luxembourg announced – under the so-called ‘spaceresources.lu’ initiative – its on-going efforts to establish a domestic regulatory framework allowing private operators to similarly acquire ownership over extracted space resources. The draft law, which was adopted in November 2016, is expected to enter into effect in early 2017. Other States, such as the United Arab Emirates, have announced their willingness to follow the US and Luxembourg’s example in the near future.
Whilst it is undeniable that these domestic measures can foster private investments in an extremely costly industry such as space mining, their compatibility with the current international legal framework remains questionable. Notwithstanding the explicit reference to the ‘full consideration of’ or ‘abidance to’ international law embodied in both the US Space Act and the Luxembourg regulatory initiative, there are indeed several treaty (and, arguably, customary) rules pertaining to the so-called corpus juris spatialis that – at least prima facie – cast doubt as to whether the attribution to private entities of ownership rights over space extracted resources (and, more generally, the commercialization of non-territorial resources of a res communis character) is consistent with the current international legal regime. Article II of the widely ratified 1967 Outer Space Treaty (‘OST’), for instance, provides that outer space, including the moon and other celestial bodies, shall not be subject to national appropriation “by claim of sovereignty, by means of occupation or use, or by any other means”. Moreover, Article I of the same instrument requires that the exploration of outer space should be carried out for the benefit and in the interest of all Countries.
In light of recent developments, legal scholarship has mainly split into two opposing views. While some authors have relied on the above-mentioned provisions to vehemently denounce the unlawfulness of recently-adopted domestic measures, others have welcomed their adoption and strongly advocated their compatibility with international law by relying, inter alia, on the principle of the freedom of use of outer space embodied in Article I(2) OST and by upholding a restrictive interpretation of Article II OST. Pursuant to such a restrictive view, mainly based on the lack of any express reference to space minerals in the text, this last provision would only prohibit claims of appropriation of celestial bodies per se, but not of the mineral resources contained therein.
The existence of diverging doctrinal approaches, apart from highlighting the complexity of the underpinning legal questions, seems to be symptomatic of a growing tension between the owed abidance to international norms, on the one hand, and the perceived need to keep pace with technological and commercial developments in the field of space exploration, on the other hand. Under this perspective, the recent steps undertaken by the US and Luxembourg raise more general questions which are worthy of further analysis: to what extent these latest developments may be seen as a voluntary attempt to influence the development of international law (both in terms of interpretation of existing provisions and the formation of new norms)? What is the legal weight of such State practice? Are the stated developments symptomatic of the need to reform or integrate the current international legal regime and, in the affirmative, is this feasible? Is there a potential international regulatory model that could support off-Earth extractive activities while complying with the current legal framework? In this respect, how can commercial interests be reconciled with the general principles of common concern of mankind and environmental protection?
In order to foster the debate over a topic that will likely attract growing attention in the years to come, QIL has decided to invite three scholars with a strong expertise in the field to share their views and insights on these and other questions related to off-Earth mining. In addressing the issue, the authors involved have adopted slightly different approaches. On the one hand, Tanja Masson-Zwaan and Neta Palkovitz retrace the status of current domestic and international practice concerning off-Earth mining as the starting point for canvassing the interplay between the domestic and international dimensions and reflecting over the significance and impact that such practice may have on future developments in the field. On the other hand, Steven Freeland focuses on the analysis of the current legal regime, primarily questioning the feasibility and potential content of an international regulatory model for space mining activities. In doing so, he highlights the concrete risk of a ‘tragedy of commons’ that – he suggests – could be avoided by means of international-concerted efforts aimed at striking a careful balance among all interests at stake. Overall, the two contributions provide a valuable insight and systematic analysis of some of the main regulatory issues concerning the exploitation of space resources that, while offering a theoretical ‘reading key’ of on-going evolutions, also shape de lege ferenda solutions meant to address upcoming (and, apparently, inescapable) developments.
