Gold Rush through a Legal Minefield:

Assessing the Legal framework of the Planetary Resources project

A video summary of the Planetary Resources Project 

A joint post by Dr. Christopher J. Newman and Adam Manning LLM, Civil Litigation Lawyer

Legislating for the Future

Anyone who has seen the news lately can hardly have missed the high profile announcement by the Planetary Resources group. This collection of extremely wealthy and high profile entrepreneurs unveiled an audacious plan to mine asteroids so that access to the extraordinary resources to be found in space can start to be utilized. Such activity would not take place in a legal void and there are two main international treaties that deal with this situation; the Outer Space Treaty and the Moon Treaty. In brief, the Outer Space Treaty states that no government can claim ownership of part of outer space (that is the Moon and other celestial resources). Celestial resources (as we call them now) are considered to be the “common heritage of mankind”.

A number of questions arise from this, the most important of which is this: how do these treaties apply to corporations? This could be an important point due to the potentially enormous amount of resources at stake.  If asteroid mining realizes anything like its true worth, the wealth involved could be staggering.  The legal concept of ownership could then come under intense scrutiny as a result. This post will therefore seek to examine some of these issues and map out the current legal position.

Commercialization & Regulation

In a broad sense any company which seeks to utilize the resources above the Karman line is involved in commercial space activity. There are a number of private companies which have been involved in commercializing access to space for a number of years (constructors such as Boeing, Lockheed-Martin and Space X through to space tourism ventures backed by Richard Branson’s Virgin Galactic). But the proposal by Planetary Resources is the first (significantly) funded venture which seeks to utilize the mineral resources of other celestial bodies. (Interestingly, this is not a new idea, having been postulated by John S. Lewis in his book "Mining the Sky" and mentioned by former astronaut Tom Jones in his memoir. Interestingly it appears that both Lewis and Jones are advisers to the new venture (see The Sentient Developments blogpost here).

Like any terrestrial venture, there are broad 'environmental' and ethical concerns that need to be addressed; such as whether there should be any requirement for the company to minimize the damage to the asteroid and the 'environment' of outer space. This may sound overly 'fluffy' and restrictive, but one only needs to contemplate the environmental damage caused by the mining of the industrial revolution: a sound regulatory system now may prevent unforeseen damage in the future. There is also the issue of bringing large quantities of 'alien' raw materials into what is a closed eco-system. Should there be limits on the amount of material imported and should there be some checks to ensure these materials do not contain potentially new lethal 'space pathogens'. It could be argued that a pre-emptive regulatory framework is necessary to ensure responsible and safe management of these new fields of endeavour. The counter argument is, of course, any regulation could be counter-productive and actual limit the exploration and exploitation of resources based around current knowledge and social trends.

'The Common Heritage of all Mankind': The Outer Space Treaty

In essence the legal framework is somewhat archaic, having originated in the midst of the Cold War. The foundation of Space Law is generally acknowledged to be The Outer Space Treaty of 1967 and provides the basic legal framework for the exploration (and exploitation) of space. The fundamental basis of the treaty (enunciated in Art I) is 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. Art. III states outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Therefore, at first sight, this would not appear to preclude exploration and exploitation by private companies.

It has been suggested in a recently on Space.com that the principle of the common heritage of mankind means that profit-making activity (which would seem to include, at least in theory, the current plan to exploit near Earth asteroids) ought to be under a moratorium until an internationally backed regime can be put in place to restrain exploitation. This restraint on commercial activity is thought necessary to avoid over exploitation and so that usage takes into account the requirements of nation states that are not able to directly exploit space resources.  Other scenarios in which the common heritage principle is important include the pristine wilderness of Antarctica and the ocean floor; the point being that these are precious, natural and, despite their great extent, limited areas that need protection from over use.

But is this really necessary with regard to space resources? Do the effectively limitless resources of space need to be protected from over exploitation?  Putting aside issues of space archaeology (for example ensuring that the Apollo 11 landing site is preserved for future generations) it has been asserted that the OST can be interpreted in such a way as to prevent an individual, government or company claiming title to an asteroid and the precious metals it contains. It is our contention that this principle must not prevent individuals or corporations from exploiting the abundant resources to be found beyond Earth.

It is possible to argue that the development of new energy and natural resources would be for the benefit of mankind and just because a group of individuals are making money out of the venture this does not negate that benefit. Think of the work undertaken by drug companies. No one could argue that development of wonder drugs does not benefit all mankind. They, however, are clearly seeking to make money. Additionally, it is clear that Planetary Resources are not seeking to claim ownership of the asteroids (just as a prospector does not seek to be head of state for a country in which she or he mines). 

Whilst this may sound promising, Article IX of the OST provides that "States" shall avoid harmful contamination of space and celestial bodies. Although Planetary Resources are not state actors, according to Art. VI of the OST "the 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." The treaty is deliberately vague as to what extent the authorization and supervision needs to be, nor is there any indication as to liability is imposed on governments who fail to impose a regulatory framework.  This has been implemented by legislation in nation states. For example in the U.K. this requirement has been enacted by the Outer Space Act 1986.

The Moon Treaty – An illusory legal Paradigm 

Whilst it was Lunar rather than Asteroidal bodies which were in the contemplation of the UN, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, or the Moon Treaty sought to make matters of space law jurisdiction subject to international law and international jurisdiction. The treaty provided that 'the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.'

The treaty has the potential to directly interfere with the activities of Planetary Resources as the provisions apply not only to the moon but also to other celestial bodies (of which asteroids large enough to sustain mining activities may well be part of). The Moon Treaty prohibits the altering of the environment of celestial bodies and requires states take measures to prevent accidental contaminations. Fundamentally, Art 11(5) requires all resource allocation and arrangements for extraction of these resources to be subject to oversight by an intergovernmental organization. 

This seems to clearly impact upon Planetary Resources proposed activity. There is, however, a significant caveat to this. The Moon Treaty remains un-ratified by any major government that has an active space programme (USA, Russia, China, India, EU, Japan - none of these states have ratified the Moon Treaty). Therefore it is, in essence a failed treaty and should the exploitation of near earth asteroids become a reality, this would need to be redrafted and renegotiated. While the Moon Treaty represents a snapshot of the current state of recognized international law, in all likelihood, the treaty will go through a significant mutation before being acceptable to spacefaring nations.

Back to the Future: Exploration for Commerce

The activities of Planetary Resources are rooted heavily in current science and appear to have significant financial backing. This venture should provide the ideal opportunity for the international community to address the issue of legal regulation in a proactive fashion rather than reactively responding to some form of disaster or malpractice. In reality, however, it is likely that the de facto situation will eclipse the de jure position. There has long been the notion that if you can get to the Moon or an asteroid and claim part of it to the exclusion of others, that is likely to be good grounds for ownership. 

A legal regime must reflect the practicalities of the situation. Perhaps the Outer Space Treaty and its notion of the common ownership and restraint of exploitation merely reflects the contemporary practical position – that without the access to space required to exploit its resources, a legal regime of no real ownership and no commercial exploitation seems both feasible and desirable.  Maybe with real access, actual property rights will start becoming much more defensible and thereby valuable. 

It must also be borne in mind that the proposals from Planetary Resources are from a highly respected group of scientists and leaders.  They are not, we hope, the robber baron capitalists the framers of the Outer Space Treaty and some academics seem to imply.  When we think of this type of approach let us remember the Treaty of Tordesillas, in which much of the New World of the late fifteenth century was divided between Spain and Portugal.  For an instant, this reflected a prevailing approach to exploitation and ownership of a new world of possibilities, based as it was on concordance between the two superpowers of the day.  It was an attempt, we might think, to ensure some order over a whole new geography that had come into existence after the voyage of Columbus. The Treaty soon fell into disuse though especially as the imperial powers of Spain and Portugal fell into decline and the other European powers sought to colonize the Americas.  It did not stop them exploiting the new world’s fabulous riches.

We might think of the approach of the Outer Space Treaty in the same way as something that has now faded in usefulness and no longer reflects the true values of our times.  Another example might be the Moon Treaty, which was deemed an extension of the Outer Space Treaty.  This was only ratified by a small number of nation states, none of which are directly associated with exercising striking acts of space exploration and its power and effect must be very limited.

It will be of the greatest interest to space lawyers to see how the plans of Planetary Resources progress and whether the Outer Space Treaty, particularly in the interpretation of the common heritage principle, has any practical effect on their exciting and audacious proposals.

Adam Manning LL.M. is a practicing civil litigation Solicitor with a keen interest in Space Law, especially the practical application of the Outer Space Act 1986.

Dr Christopher J. Newman is Senior Lecturer in Law and Module Leader for Space Law at the University of Sunderland and is "The Legal Spaceman"