Book Review: Law and Regulation of Commercial Mining of Minerals in Outer Space

     Law and Regulation of Commercial Mining of Minerals in Outer Space by Ricky Lee is the seventh volume in the Springer Space Regulations Library. ISBN: 9789400720381. Lee lays out a strong background and a detailed overview of the current state of space law to form his proposal for creating a regulatory framework for mining in outer space. The book is organized into 7 chapters, references, and an index. After the detailed table of contents are lists of abbreviations, list of figures, list of tables, glossary, and a list of reports, series, and journal titles.

     Chapter 1 provides the historical background for space exploration, the hypothesis of the book, and lays out a broad overview of the other chapters. There is a graphical representation of the flow of the chapters on page 3. This is the first of many charts and graphs throughout the book which add detail and allows the reader to obtain a thorough grasp of the technical material. Chpater 2 discusses the economic and technical prospects of space mining. One part of the chapter of particular interest is the discussion of the various classes of asteroids and their geologic make-up. Chapter 3 reviews the exisiting international space law. Chapter 4 explores how commercial uses of outer space coincide with provisions of the international treaties with discussions on commercial versus public use and the prohibition on property rights. Chpater 5 describes the policy impasses of the "province of all manking" and "common heritage of mankind" principles and the need for a new legal framework. Chpater 6 is the key chapter to the book's namesake. This is the chapter where Lee proposes resolutions to balance regulation and free market in the creation of an international regulatory authority without violating or recreating the international treaties. Chapter 7 briefly discusses the assumptions that must be satisfied in order for the hypothesis to be proven.

     Along with the footnotes in each chapter the researcher will also find the organization of the references section highly useful. This section is broken down into treaties, United Nations documents, international cases, domestic (by country) legislation and regulations, domestic cases, and secondary sources. Overall the book is detailed, thorough and a very interesting read for the space law and asteroid mining enthusiast.

FAA Regulation of Commercial Space Transportation

     Commercial space transportation has the ability to  jeopardize public health and safety, property, U.S. national security, foreign policy interests, and international obligations of the United States. Fortunately we have the Federal Aviation Administration (FAA) to issue licenses and permits. These licenses and permits are issued through the Office of Commercial Space Transportation (AST) for launch or reentry vehicles, launch sites (spaceports), experimental permits for reusable suborbital rockets, and safety approvals. Here are the resources that explain where the FAA's authority comes from. As with most space law issues the beginning lies with the International Treaty System.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967;

 

States Parties to the Treaty shall bear international responsibility for national activities in outer space…and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space… shall require authorization and continuing supervision by the appropriate State Party to the Treaty. (Art. VI).

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and personnel, while in outer space or on a  celestial body. Ownership of objects … is not affected by their presence in outer space or on a celestial body or by their return to the Earth. (Art. VIII).

The above parts of the Outer Space Treaty were the precursor for the Registration Convention which further outlines the responsibility of nations who send objects and people into space.

The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976;

    This treaty was developed to provide for the national registration of objects launched into outer space, establish a central register of objects launched into outer space, and provide additional means and procedures to assist in the identification of space objects.

[T]he launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry. (Art. II).

 

The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned. (Art. II)

     In 1984 the U.S. Congress passed the Commercial Space Launch Act, Pub. L. No. 98-575, 98 Stat. 3055 (1984).  This Act and its amendments were codified in Title 49 of the U.S. Code. Then in December 2010 Congress consolidated all U.S. space laws into the new Title 51 National and Commercial Space Programs, Pub. L. No. 111-314, 124 Stat. 3328 (2010). The Commercial Space Launch Act is now codified in chapter 509 of title 51. This is where the Department of Transportation is designated to regulate the commercial launch industry. The Office of Commercial Space Transportation (AST) was transferred to the Federal Aviation Administration (FAA) in 1995.
     The regulations based on the Commercial Space Launch Act are codified in the Code of Federal Regulations (CFR) in Title 14, chapter 3 (14 C.F.R. § 400.1 (2012)). Here is a list of where to find the various regulations within Title 14:

Part 413-LICENSE APPLICATION PROCEDURES

Part 414-SAFETY APPROVALS
Part 415-LAUNCH LICENSE
Part 417-LAUNCH SAFETY
Part 420-LICENSE TO OPERATE A LAUNCH SITE
Part 431-LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
Part 433-LICENSE TO OPERATE A REENTRY SITE
Part 435-REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH  
              VEHICLE (RLV)
Part 437-EXPERIMENTAL PERMITS
Part 440-FINANCIAL RESPONSIBILITY
Part 460-HUMAN SPACE FLIGHT REQUIREMENTS

It appears that the FAA's jurisdiction is over the launch and reentry of space vehicles and not over activities once in orbit.

Book Review: The Laws of Spaceflight: A Guidebook for New Space Lawyers

     As the field of space law continues to gain momentum more and more materials are being published. One of the more recent books, published by the American Bar Association (ABA), is The Laws of Spaceflight: A Guidebook for New Space Lawyers, by Matthew J. Kleiman, Jennifer K. Lamie, and Maria-Vittoria "Giugi" Caminati. Coming in at under 400 pages cover to cover this book covers a lot of information in a concise and readable manner. Its twelve chapters covers all of the basic information a person would need to know as they enter the field of space law. Each of the chapters are written to be read independently of one another making the book a handy reference for each of its topics.
     The first chapter provides an overview of spaceflight operations and covers basic orbital mechanics, spacecraft power and propulsion, satellites systems, hazards of the outer space environment, and practical applications of space technology. Chapters two, three, and four cover the history of spcaeflight, the international legal framework, and the development of U.S. space law respectively. Chapter five is one of the more interesting chapters as it discusses licensing commercial spaceflight and the jurisdiction of the Federal Aviation Administration (FAA). The remaining chapters cover liability and insurance issues, licensing of private satellites, export control compliance, contracting with the U.S. Government, environmental issues, and property rights (real and intellectual). At the end of each chapter is a glossary of terms with definitions for easy reference. The appendix has the full texts of all of the international treaties and resolutions, along with a sample contract for launch services, U.S. munitions list categories IV and XV, sample technical assistance agreement, sample technology control plan, and standard practices and guidelines for space debris mitigation. The book concludes with a table of authorities and a comprehensive, usable index.
     Overal The Laws of Spaceflight is a well organized and thought out book. Practicing attorneys, attorney's new to space law, students, and academics will all find this book beneficial to build a foundational knowledge of space law and as a handy reference tool. Space Law Librarian gives this book 5 out of 5 stars.

Is Mining the Moon Legal?

     Google recently announced that they will award $20 million to the "first privately-funded company to land a robot on the moon and explore the surface by moving at least 500 meters and send high definition video back to Earth by 2015." There is a question of the legality of a private enterprise mining the moon. Whether the answer is yes it is legal, or no it is not legal is open to interpretation. Here are the sources that one would look to in order to formulate the argument:

Outer Space Treaty (OST): Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signatureJan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

     Article I of the OST provides that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries… and shall be the province of all mankind, free for exploration and use by all States who shall be free to access all areas of celestial bodies. Article II prohibits any national appropriation of outer space and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. These clauses do not forbid the exploitation of natural resources it is only prohibiting any one nation from claiming ownership of any celestial body.

    Article VI sets out the responsibilities of the States parties to the treaty:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. 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 Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

     Article VIII gives States jurisdiction and control over objects and personnel launched into space and retains jurisdiction while in outer space when the object and personnel are launched from that state. (emphasis added).

Moon Agreement: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22 (entered into force July 11, 1984)

     The Moon Agreement is largely thougth to be a failure. None of the major space fairing nations at the time signed this treaty. However more of the signatories to the Moon Agreement are becoming space fairing nations and it could possibly hold more weight as part of the International Treaty System. Article I, paragraph 1 of the Moon Treaty states that it applies not only to the moon, but also “to other celestial bodies within the solar system, other than the earth.” “The exploration and use of the moon shall be the province of all mankind (as in the OST) and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Article 11 paragraph 1 calls the moon and its natural resources the common heritage of mankind.”The “common heritage of mankind” notion was embraced by developing nations and interpreted as a principle that “celestial body resources are the common property of all the nations” and requires an international regime for the redistribution of wealth and technology among nations. It was these economic provisions of the Moon Treaty, rather than the demilitarization provisions in Article 3, that sparked controversy and are considered unfavorable to private enterprise.

      There are two (2) exceptions to the prohibition on the exploitation of natural resources in outer space: The first exception is if specific legal norms enter into force with respect to any of these celestial bodies. The second exception is if “an appropriate international regime is created to govern the exploitation of the natural resources."

Court cases:

Smith v U.S. 507 US 197 (1993)

     In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Nemitz v. U.S. 2004 WL 3167042 (D. Nev. April 26, 2004) Not Reported in F.Supp.2d

     NASA landed a robotic spaceship on Asteroid 433 "Eros" in 2001. Gregory W. Nemitz informed the space agency that he owned Eros, as he previously filed his claim to ownership of Eros at an online registry for celestial land claims, which a Seton Hall University School of Law professor started in the 1990s to stir discussion of space-related legal issues. The case was dismissed on the grounds that the U.S. Constitution does not recognize a cause of action for denial of property rights in outer space.

A number of law review articles have also been written on this topic. Here are a few worth looking into:

Ezra J Reinstein, Owning Outer Space, 20 Nw. J. Int'l L. & Bus. 59 (1999).

Jeremy L. Zell, Note, Putting A Mine On The Moon: Creating An International Authority To Regulate Mining Rights in Outer Space, 15 Minn. J. Int'l L. 489 (2006).

P.J. Blount, Jurisdiction in Outer Space: Challenges of Private Individuals in Space,

33 J. Space L. 299 (2007)

Timothy G. Nelson, The Moon Agreement and Private Enterprise: Lessons from Investment Law, 17 ILSA J. Intl & Comp L. 393 (2010).

Blake Gilson, Defending Your Clients Property Rights in Space: A Practical Guide for the Lunar Litigator, 80 Fordham L. Rev. 1367 (2011).

   Space law is still new and developing. Even though mining laws and property rights have been around for quite some time, it may take a while to iron out all of the details for the province of all mankind.

Space Policy of the United States

    There are international laws (the treaties overseen by the UN) and national laws (Title 51 U.S. Code). There is also space policy. Policy is defined as a definite course or method of action. Space policy is the course of action the country takes in developing and implementing space activities and exploration. This guides political decisions on the civilian, military, and commercial uses of outer space.
    Space Policy is made by the President of the United States and the United States Congress. In the Executive Branch the National Security Council, Office of Science and Technology Policy, and Office of Management and Budget all play a part in forming space policy. In Congress different bodies share responsibility based on whether the policy is for civilian activity or military activity. Civilian space policy is made by the House Committee on Science Space and Technology Subcommitte on Space and the Senate Commitee on Commerce, Science, and Transportation Subcomittee on Science and Space. Military and intelligence policies are under the purview of the House Armed Services Committee Subcommittee on Strategic Forces and the Senate Armed Service Committee Subcommittee on Strategic Forces as well as the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. The Senate Foreign Relations Committee holds hearings on proposed space treaties.
     Once developed, space policy is carried out by the National Aeronautics and Space Administration (NASA). NASA carries out policy aspects of both civilian and military space policy. Various agencies under the Department of Defense (DOD) also carry out space policy such as United States Space Command, Air Force Space Command, Navy Space Command, and the Army Space and Missile Defense Command.
     The first space policies were instituted under President Dwight D. Eisenhower with the passage of the National Aeronautics and Space Act that created NASA. Every President since has put forth a space policy to guide the country in its journey to and exploration of outer space. The various space policies and supporting documentation can be found on NASA's Key Documents in the History of Space Policy website.

U.S. Space Law

     We previously explored the international framework for space law. Today I am going to introduce the primary source of space law in the United States. The laws of the United States regarding outer space are codified in Title 51 of the United States Code. Signed into law December 18, 2010 when President Barak Obama signed PL 111-314 into law. Introduced as H.R. 3237 by Rep. John Conyers and titled National and Commercial Space Programs, Title 51 brought together (did not modify or repeal) a number of statutes regarding space law into one easier to find place. Some of these previous statutes were in Title 15, Commerce and Trade, Title 42, The Public Health and Welfare and Title 49, Transportation.
     A quick look at this Title will show that it echoes many of the sentiments embodied in the Outer Space Treaty. The seven subtitles of Title 51 are:

Subtitle I—General

Chap. Sec.

101. Definitions ................................................................................................... 10101

Subtitle II—General Program and Policy Provisions

201. National Aeronautics and Space Program ................................................ 20101

203. Responsibilities and Vision ........................................................................ 20301

Subtitle III—Administrative Provisions

301. Appropriations, Budgets, and Accounting ................................................ 30101

303. Contracting and Procurement ................................................................... 30301

305. Management and Review ........................................................................... 30501

307. International Cooperation and Competition ............................................. 30701

309. Awards ......................................................................................................... 30901

311. Safety ........................................................................................................... 31101

313. Healthcare ................................................................................................... 31301

315. Miscellaneous .............................................................................................. 31501

Subtitle IV—Aeronautics and Space Research and Education 

401. Aeronautics ................................................................................................. 40101

403. National Space Grant College and Fellowship Program ......................... 40301

405. Biomedical Research in Space ................................................................... 40501

407. Environmentally Friendly Aircraft ........................................................... 40701

409. Miscellaneous .............................................................................................. 40901

Subtitle V—Programs Targeting Commercial Opportunities

501. Space Commerce ......................................................................................... 50101

503. Commercial Reusable In-Space Transportation ....................................... 50301

505. Commercial Space Competitiveness .......................................................... 50501

507. Office of Space Commercialization ............................................................ 50701

Subtitle VI—Earth Observations

601. Land Remote Sensing Policy ..................................................................... 60101

603. Remote Sensing .......................................................................................... 60301

605. Earth Science .............................................................................................. 60501

Subtitle VII—Access to Space

701. Use of Space Shuttle or Alternatives ........................................................ 70101

703. Shuttle Pricing Policy for Commercial and Foreign Users ..................... 70301

705. Exploration Initiatives ............................................................................... 70501

707. Human Space Flight Independent Investigation Commission ................ 70701

709. International Space Station ....................................................................... 70901

711. Near-Earth Objects ..................................................................................... 71101

713. Cooperation for Safety Among Spacefaring Nations ................................ 71301

Sections 4, 5, and 6 of PL 111-314 describe conforming amendments to other laws, transitional and savings provisions, and repeals respectively. Overall Title 51 is comprehensive and informative. Like the international framework, the U.S. framework may not answer all of the questions that may arise, but it is detailed enough to provide direction to guide the discussion.












           

International Space Law Framework

      The space industry is experiencing a rebirth. This time with an emphasis on commercial activity and private investment. This revitalization of industry is going to bring up many questions regarding international legal treaties, local laws, and regulations. My goal is not to necessarily explain the ins and outs of all of the laws and developments, but to introduce them and to help those interested find more information. I would like to start by talking about the basic international legal framework that lays the foundation for space law.
        The international forum for the development of space law is the United Nations Committee on the Peaceful Uses of Outer Space which is under the United Nations Office for Outer Space Affairs (UNOOSA). There are currently five (5) international treaties and five (5) declarations to promote international cooperation and understanding in space activities. The five treaties are:

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967;

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement"), adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968;

The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972;

The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976;

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement"), adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984.

 

     The Outer Space Treaty is the grandfather of all of the other treaties. It sets the conceptual framework for each of the following treaties. All of the treaties provide for the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes. The treaties may not always provide a clear answer to intricate legal questions they do assist in guiding the conversation. It is important to point out that the United States is not a signatory to the Moon Agreement. This will be discussed in more depth in future posts.

     The five declarations that outline international understandings regarding the dissemination and exchange of information through transnational direct television broadcasting via satellites and remote satellite observations of Earth and general standards regulating the safe use of nuclear power sources necessary for the exploration and use of outer space are:

• The Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (General Assembly resolution 1962 (XVIII) of 13 December 1963);          
• The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (resolution 37/92 of 10 December 1982);          
• The Principles Relating to Remote Sensing of the Earth from Outer Space (resolution 41/65 of 3 December 1986);          
• The Principles Relevant to the Use of Nuclear Power Sources in Outer Space (resolution 47/68 of 14 December 1992);          
• The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (resolution 51/122 of 13 December 1996)

     This has been a brief introduction to the international space law framework. If you want to begin your research and understanding of space law this is where you start.