Canadian, UK Law Professors Condemn Space Mining Provisions of Commercial Space Act (examiner.com)

MarkWhittington writes: The Commercial Space Launch Act, which includes provisions allowing American companies the right to keep resources that they mine in space, was recently signed into law by President Barack Obama. While the act has been hailed as groundbreaking in the United States, the space mining title has gotten an angry reaction overseas. In an article in Science Alert, Gbenga Oduntan, Senior Lecturer in International Commercial Law, University of Kent, condemned the space mining provisions as environmentally risky and a violation of international law. Ram Jakhu, a professor at Canada's McGill University's Institute of air and space law, adds that space mining is a violation of the Outer Space Treaty and should not be allowed.

Comments

The treaty says no such thing.

[bistromath007]

It prohibits the militarization and/or colonization of space. It says fuckall about what to do with any stuff we collect there. What a disingenuous asshole.

Re:The treaty says no such thing.

[ShanghaiBill]

It prohibits the militarization and/or colonization of space.

The Outer Space Treaty does neither of these things. It prohibits offensive nuclear weapons in space, but does not prohibit conventional weapons. It does not prohibit colonization, it just prohibits exclusive territorial claims.

Re:The treaty says no such thing.

[hey!]

It does not prohibit colonization, it just prohibits exclusive territorial claims.

Right, which does not necessarily prevent claiming materials found as private property.

That said, this is all a tempest in a teapot. At this stage of technology asteroid mining is about the worst imaginable investment anyone could make. It's a purely emotional investment, driven by enthusiasm, and it doesn't stand up to critical scrutiny. We don't even go after the valuable on the sea floor because the cost of finding and raising them makes that unprofitable. If there were hundred pound chunks of refinery-pure platinum floating around in the asteroid belt it would cost more to fetch and return them than they'd fetch on the market.

The economics of space travel is dominated by the cost of moving mass in and out of gravity wells and imparting the necessary acceleration to match position and velocity with targets. It follows that we're looking for stuff with the highest value/mass, and until costs drop by a couple of orders of magnitude there's only one commodity worth returning from space: knowledge. The first physical substances worth mining will be things useful in the pursuit of knowledge -- e.g. water that can be converted to rocket fuel without tankering to the outer solar system.

Re:The treaty says no such thing.

[MightyMartian]

And when we get to that point, we'll worry about it. Heck, various nations claim chunks of Antarctica, in one way or another, and thus far it's been meaningless flag planting.

But when we do get to the point where we can mine other bodies in the solar system, we'll have to come up with some sort of system of claims. The UN isn't going to be mining, it's going to be commercial and state players doing the mining, and we'll have to come up with a new treaty that will inevitably recognize the rights of those players to make what amount to territorial claims.

Probably the biggest concern, in my view, is privately-owned entities making claims independent of any national or international body.

Re:The treaty says no such thing.

[ColdWetDog]

Much of how one looks at this depends on your time frame. Certainly in the near (20-50 year) future, asteroid mining won't be economically practical. And for longer time periods it may never be practical. But, our ability to cast the future is very poor. If you have money to burn in the interim, you can make an argument that staking out the high ground (so to speak) is indeed economically sensible way to spend part of your (or better yet, some other poor suckers) money.

The big question is who gets to decide about this? A couple of bored, space nutter billionaires or some law professor somewhere?

The law is ridiculous anyway

[aaaaaaargh!]

The idea that the USA - or any other nation state alone, for what its worth - could have the power to grant anyone property rights of extraterrestrial bodies is ridiculous anyway.

Nope

[JBMcB]

"Meanwhile, the Moon Agreement (1979) has in effect forbidden states to conduct commercial mining on planets and asteroids until there is an international regime for such exploitation. While the US has refused to sign up to this, it is binding as customary international law"

This guy is a specialist in international law? You didn't sign up for a treaty, but it's still binding? Sure we'll see how that goes.

Re:Nope

[mbone]

I'm not sure what you're talking about. Customary international law (CIL) is regularly followed/applied by SCOTUS when international disputes come up. E.g. SCOTUS pretty much always follows the protocols listed under UNCLOS. The US has not signed on, but it has regularly followed UNCLOS as CIL. It's basically seen as "common law".

162 States, including many maritime powers, have signed on to UNCLOS III. It is reasonable to view it as CIL. It is not, by the same standard, reasonable to view the Moon Treaty in the same way, as no major space power has ratified it.

Note, also, that nothing prevents the US from adopting laws that go against CIL, as long as it is based on agreements we have not ratified.

ownership of an object, sovereignty over territor

[raymorris]

There are two distinct issues here. First, the common law says that if a person harvests a wild animal, plant, or other thing, it is his to eat or otherwise use. That's about ownership of an object.

A different, though related concept, is that the first -country- to start using some territory has a claim of sovereignty over that territory. Meaning essentially that the area becomes part of that country.

The treaty says that -sovereignty- rules are different in space, no country can claim the moon or another planet as part of their country, by colonizing it. The treaty's Article 2 reads, "Outer space, including the moon and other celestial bodies, is not subject to_national_appropriation_by_claim_of_sovereignty_, by means of use or occupation, or by any other means."

The treaty says that Mars wouldn't become part of the the USA if the US colonized it. It does NOT say that you can't go to Mars, pick up a rock, bring it home, and then own that rock. That's ownership of an object, not sovereignty over territory, and the treaty doesn't prohibit ownership of an object.

What is with these space law professors?

[mbone]

It is had not to agree with Ricky Lee of Australia, who wrote his thesis on the subject:

"So the idea that commercial use of space resources is prohibited by the Outer Space Treaty... is quite simply absurd,"

Quite.

I went to the House hearing for this Bill, and also talked to various staffers and actual space lawyers (as opposed to professors) about it. I feel, and they seem to feel, that the 2015 Space Act is entirely consistent both with the 1967 Outer Space Treaty, which says

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

and also with the precedent set by the US, Russia and Japan, all of which have material returned from celestial bodies. The reality is that these three countries have all treated those materials as property, which can be and has been traded. That is the actual customary international law here, not the Moon Treaty, which has been ratified by no major space-faring nation, and which is a dead letter. In addition, each state gets to set the laws on actions by their citizens in space, and are responsible for those actions (say, if they cause damage to another country's spacecraft).

Finally, the 2015 Space Act itself says

SEC. 403. DISCLAIMER OF EXTRATERRITORIAL SOVEREIGNTY.

It is the sense of Congress that by the enactment of this Act, the
United States does not thereby assert sovereignty or sovereign or
exclusive rights or jurisdiction over, or the ownership of, any
celestial body.

So, despite most of the headlines announcing this law, it doesn't (and couldn't) allow for the ownership of asteroids, just of material extracted from asteroids, exactly as is allowed for in the Outer Space Treaty.

I have to say that the space lawyers I have talked to share my puzzlement as to what the professors say things that seem so ungrounded. (They are of course welcome to disagree or oppose, but you would expect that they would have arguments grounded in facts.)

Note, also, that none of the other space powers has complained about this act, which they were and are certainly able to do it they feel it violates the '67 Outer Space Treaty.

Re:What is with these space law professors?

[mbone]

Ricky Lee's (large) thesis Creating a Practical Legal Framework for the Commercial Exploitation of Mineral Resources in Outer Space