The exploration of mining of lunar resources reflects the expanding interest in exploring and exploiting outer space. However, the looming reality of lunar mining has raised complex legal questions that demand careful consideration. At the heart of the debate lies the tension between the Common Heritage of Mankind principle enshrined in Article II of the Outer Space Treaty[1] and national legislation that grants property rights to national entities for space resources obtained. In this article, Paragraph 51303 of the Commercial Space Launch Competitiveness Act[2] of the United States serves as an illustrative example of such national legislation.
The Clash of Legal Titans
Article II of the Outer Space Treaty stipulates that no nation can appropriate the moon, emphasising the moon’s status as a common heritage of mankind. However, national legislation like Paragraph 51303 CSLCA could potentially contradict this by recognising property rights for US private entities in the extraction of lunar resources. This ambiguity in Article II OST has sparked a contentious debate about whether national legislation like Paragraph 51303 CSLCA is indeed in contradiction with Article II OST as international law. Opponents argue that nations with such national legislation circumvent their obligations under Article II OST[3], while proponents contend that the ambiguity of Article II allows for the interpretation that property rights are permissible[4]. They, amongst others, point to the legal doctrine ‘expressio unius est exclusio alterius’, which implies that if Article II OST intended to prevent property rights in space resources, it would have explicitly stated so. [5]
Lessons Learned from the Moon Agreement
The Moon Agreement[6] aimed to clarify Article II OST by restricting resource appropriation and creating an international regime for lunar resource sharing. However, this agreement lacked international support as all major spacefaring nations rejected it. This rejection was chiefly due to the restriction on resource appropriation in Article 11(3) Moon Agreement and the establishment of an international regime to ensure equitable sharing of the benefits derived from resources in Article 11(7)(d) Moon Agreement.[7] The Moon Agreement’s clarification of Article II OST would dictate that national legislation like Paragraph 51303 CSLCA conflicts with Article II OST. However, unless more nations decide to ratify the Moon Agreement, it will not be deemed customary international law, limiting its ability to provide guidance in the interpretation of Article II OST.
A Tragedy of the Commons in Outer Space?
The lack of consensus on the scope of Article II, coupled with the rapid evolution of the space sector, underscores the need to establish international customary law to interpret and resolve conflicts between Article II and national legislation like Paragraph 51303 CSLCA. The resolution of this issue will depend on international dialogue to establish a collective interpretation of Article II OST. The absence of internationally agreed-upon property rights regimes may result in disputes among spacefaring nations as well as between spacefaring and non-spacefaring nations. Without consensus, mankind could risk stumbling into a “tragedy of the commons”[8] in our quest for lunar riches. The future of space mining hinges on our ability to establish a clear legal framework that respects the Common Heritage of Mankind principle while accommodating the interests of spacefaring nations.
Anniek (F.R.) van Elzelingen
Bibliography
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. London, Moscow and Washington 27 October 1967 (UNTS. 1967, 610, p. 205).
2. U.S. Commercial Space Launch Competitiveness Act. United States Congress, 25 November 2015 (Public Law 114-90).
3. DiMaria 2016 S. DiMaria, ‘Starships and Enterprise: Private Spaceflight Companies' Property Rights and the US Commercial Space Launch Competitiveness Act’, John's L. Rev., vol. 90, p. 415.
4. Blount & Robison 2016 P. J. Blount & C.J. Robison, ‘One small step: The impact of the US Commercial Space Launch Competitiveness Act of 2015 on the exploitation of resources in Outer space’, NCJL & Tech., vol. 18, p. 160. Dodge 2016 M. Dodge, ‘The US commercial space launch competitiveness act of 2015: Moving US space activities forward’, Air & Space Law., vol. 29, p. 4.
5. Reaven 2016 E. Reaven, ‘The United States Commercial Space Launch Competitiveness Act: The Creation of Private Space Property Rights and the Omission of the Right to Freedom From Harmful Interference’. Wash. UL Rev., Vol. 94, p. 233.
6. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. New York 18 December 1979 (UNTS. 1984, 1363, p. 3).
7. Wrench 2019 J. G. Wrench, ‘Non-appropriation, no problem: The Outer Space Treaty is ready for asteroid mining’, Case W. Res. J. Int'l L., Vol. 51, p. 437.
Shackelford 2009
S.J. Shackelford, ‘The tragedy of the common heritage of mankind’, Stan. Envtl. LJ, vol. 28, p. 109.
[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. London, Moscow and Washington 27 October 1967 (UNTS. 1967, 610, p. 205).
[2] U.S. Commercial Space Launch Competitiveness Act. United States Congress, 25 November 2015 (Public Law 114-90).
[3] DiMaria 2016, p. 415.
[4] Blount & Robison 2016, p. 160. Dodge 2016, p. 4.
[5] Reaven 20
[6] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. New York 18 December 1979 (UNTS. 1984, 1363, p. 3).
[7] Wrench 2019, p. 437.
[8] Shackelford 2009, p. 109. Noyes 2011, p. 447.
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