Space Law Workshop exposes rift in legal community over national authority to sanction space mining

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COLORADO SPRINGS — International space experts conducted a spirited debate April 16 on whether national or international laws should govern space mining at the Space Law Workshop at the 34th Space Symposium here.

“The problem is there is currently not legal certainty about what is allowed and what is not allowed,” said Tanja Masson-Zwaan, former president of the International Institute of Space Law (IISL). “In the Outer Space Treaty, the question of whether you can own extracted resources is not clearly answered.”

The United States and Luxembourg have passed laws giving companies the rights to space resources they extract. Companies are relying on that legal authority to attract investment for their plans to mine the moon and asteroids.

“If I’m a U.S. company, the only law I am obligated to follow is U.S. law,” said George Sowers, Colorado School of Mines professor and former United Launch Alliance vice president and chief scientist.

Not all international space experts agree, however, that individual nations have the authority to grant companies permission to extract resources in orbit.  

Stephan Hobe, director of the Institute of Space Law at Germany’s University of Cologne, said that under 1967 Outer Space Treaty, “outer space and all non-man-made objects it entails are subject to international regulation, I repeat international regulation, not national regulation.”

Hobe said he is not opposed to space mining but believes that before commercial mining activities begin, international representatives should conduct negotiations and establish rules.

As an example of the path to follow, Hobe pointed to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, better known as Moon Agreement, which was adopted by the United Nations General Assembly in 1979 and ratified by 18 nations, but no states conducting human exploration missions.

The Moon Agreement, among other things, affirms that lunar resources are “the common heritage of mankind and that an international regime should be established to govern” their exploitation.  

“My dream is that countries like the U.S., like Russia and other countries would be sitting together at the table in Vienna to draft such a regime” related to space resources,” Hobe said.

Because commercial firms are eager to extract space resources as soon as possible, several international panels have begun focusing on the topic, including the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) and IISL. IISL conducted a 2017 study on space mining, led by Hobe.

Now, the Hague Space Resources Governance Working Group, led by the Netherland’s Leiden University is seeking to promote dialogue through a document it published in September, “Draft Building Blocks for the Development of an International Framework on Space Resource Activities.”

The Working Group “is also of the opinion that some kind of international governance would be the ideal solution,” said Masson-Zwaan. “The point is I don’t think we can wait because the companies are knocking on the door. That is the reason national laws came into being. And that led COPUOS to make it an agenda item.”