SPACE MINING AND ITS VIABILITY IN THE CURRENT LEGAL REGIME.

Abstract

Several private players in the recent times have expressed their desire to mine the resources
in space. This poses certain ethical and legal concerns regarding the viability of the same.
Several scholars argue that such activities may flout national non appropriation principle i.e.
Article II of the Outer Space Treaty. However, it is the opinion of the author that space
mining does not per se violate the provisions of the Article II of the Outer Space Treaty.
However, space mining poses other concerns of breach of cooperation, environmental
damage etc. The current legal regime is not adequately equip to address this problem. Even
the national legislations of several countries which allow for space mining do not address
this issue. Even though an international regime emulating the deep seabed mining would
address some of these concerns, the current political structure are not in favour of the same.
Hence, the legal viability of this billion dollar industry is on tenuous terms.

I. INTRODUCTION

The prospects of extracting and exploiting the resources in Outer Space including the Moon
and other Celestial Bodies may be considered "a leap for mankind" as prophesized by Neil
Armstrong. Some scholars are of the opinion that the plummeting resources of the Earth are
not sufficient to meet the needs of humanity and therefore one has to explore untapped
potential of outer space to bridge this resource crunch.1 Due to this prospect and many others,
various private companies seek to invest and further engage in this trillion dollar industry of
mining the resources in the space. To buttress the activities of the private players, national
legislations of various countries have been amended to legitimise the mining of space
activities. Even agreements between the private players and nation states have been signed to
further the claims of the exploitation of the resources. While claims to the proprietary rights
of the celestial bodies have been made since the annals of history, most recently the case of
the case of Gregory Nemitz 2, however this has to be distinguished from such claims as these
private players are not claiming property rights over the territory, but its resources.

With these recent developments, several scholars and space faring countries have raised their
concern and argued that such activities may be in violation of the Outer Space Treaty. Some
other scholars propose that such exploitation should take place only when an international
regime as mandated under the MOON Agreement is established. Some even argue that in the
absence of a regime governing the exploitation of the resources of celestial bodies, it would
be inequitable to exploit the same. In the paper in PART II, the author will be succinctly
analysing the economic interest in mining the resources of celestial bodies. The author would

1 Andy Greenspon, Precious Metals in Peril: Can Asteroid Mining Save us Available at
http://sitn.hms.harvard.edu/flash/2016/precious-metals-peril-can-asteroid-mining-save-us/ (Last visited on
08.07.2017)

2 VIRGILIU POP, WHO OWNS THE MOON, EXTRATERRESTRIAL ASPECTS OF LAND AND MINERAL RESOURCE
OWNERSHIP, 43 (2008); Wayne White, Nemitz vs. U.S.: the First Real Property Case in United States Courts,
PROC. 47TH COLLOQUIUM ON L. OUTER SPACE, 339, 340 (2004).
not be analysing whether currently it is economically or technically feasible to mine the
resources of celestial bodies. In PART III the author will trace the history of mining the
resources of the celestial bodies and analyse whether there exists a customary international
law permitting the mining of such resources. In PART IV the author would trace the increase
of private space actors interested in space mining and changes in the national space
legislations to buttress their claim.

In Part V, the author will the analysing the legal viability of conducting such space mining
activities. In this Part the author also seeks other questions primarily; First whether Article II
of the OST also applies to private players Second whether asteroid comes within the
definition of a celestial body and Third whether the non appropriation principle also prohibits
the appropriations of the resources of the celestial bodies. In Part VI the author would be
analysing the other concerns associated with space mining. These include concerns that the
principles of cooperation and common benefit would be violated, environmental damage may
accrue etc. In Part VII the author would be proposing the establishment of an International
regime governing the exploitation of the resources as it would be more equitable to establish
the same. In Part VIII the author would provide the conclusion for this paper.

II. ECONOMIC VALUATION OF THE SPACE RESOURCES.

Touted as the next 'gold rush', space experts have estimated 195 billion dollars to 10,000
quadrillion dollars industry for mining the celestial bodies 3. Such a valuation arises due to the
different resources on celestial bodies including water, helium-3, hydrogen, minerals such as
platinum iridium, titanium, thorium, rhodium etc which can be used for in-situ utilisation or
brought back to Earth. 4 This has lead to many private player and space faring nations evince
their interests in the exploitation of the resources of the celestial bodies. 5 Currently due to the
close proximity from the surface of the Earth near earth asteroids, moon, mars, etc are the
next targets for space mining.6 Such strategy is often adopted by the space faring nations and
the private players to reduce the cost of the space activity. 7

3 RICKY J LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2012); Wall
Mike, Earth-Buzzing Asteroid Worth $195 Billion, Space Miners Say. Available at
https://www.space.com/19758-asteroid-worth-billions-2012-da14-flyby.html Last visited on 06.07.2017. Why
Asteroids Are The "Low Hanging Fruit of the Solar System Available at
http://www.planetaryresources.com/asteroids/why-asteroids/ (Last visited on 05.07.2017).

4 Hamza Hameed, The Legality and Ethics of Mining an Asteroid, Available at

https://www.spacelawresource.com/hamzahameed (Last visited on 06.07.20170. ; Also see GRANT H. HEIKEN,
DAVID T. VANIMAN AND BEVAN M. FRENCH LUNAR SOURCEBOOK (1991).

5 Id.

6 Calla Cofield, Extraterrestrial Gold Rush: What's Next for the Space Mining Industry? Available at
https://www.space.com/34774-whats-next-for-space-mining.html ( Last visited on 09.07.2017) Also see Ram
Jhaku & Maria Buzdugan, Development of the Natural Resources of the Moon and Other Celestial Bodies:
Economic and Legal Aspects, The International Journal of Space Politics and Policy, 6:3 201-205.

7 Id.
Resources on the celestial bodies can be used for different purposes. Asteroids are classified
into categories including Type-C, Type-S which are rich in carbon and metal compounds
respectively.8 Further, the minerals obtained from these celestial bodies can be used for in-situ
utilisation i.e. for constructions on the surface of the celestial bodies which will have
scientific and commercial value.9 Some space experts also argue that these resources can be
brought back to Earth and sold.10. Helium-3 obtained from lunar surface can be used as fuel
for nuclear fusion reaction which is an important source of energy. 11 For instance, scientists
have even argued that the platinum obtained from asteroids may be 174 more times than that
ever obtained from Earth, hence it is advisable to utilise the resources in space.12

There may be other uses of such resources for instance elements like hydrogen, methane,
ammonium also serve as rocket propellant.13 Due to the presence of these elements, many
scholars propose to build a refuelling station on the celestial body which has a low gravitation
pull than Earth.14 Since the gravitational pull of some of the celestial bodies is less than that
of the Earth, therefore it is economical to launch from such celestial bodies. They argue that
such a refuelling station would assist in further exploration of the outer space which the Outer
Space Treaty seeks to promote.15 Moreover, a resource like water which is found on the lunar
surface and many C Type asteroids is also valuable as it helps in sustaining life in liquid and
gaseous form, used for protection against radiation, used as fuel for spacecrafts. 16
Exploitation and the usage of water is essential for space tourism to take place.

Various private organisations have expressed their desire to mine the moon. Some of these
organisations include Planetary Resources, Moon Express, Deep Space Industries, Shakelton

8 Resources from Space, Available at https://www.explainingthefuture.com/resources_from_space.htm (Last

visited on January 10, 2018)

9 John S. Lewis David McKay, Bention C Clark,Using Resources from Near Earth Space, Available at
http://www.uapress.arizona.edu/onlinebks/ResourcesNearEarthSpace/resources01.pdf (Last visited on
07.07.2016).

10 Id.

11 B. COOPER, D. SCHRUNK, B. SHARPE AND M. THANGAVELU, THE MOON: RESOURCES, FUTURE

DEVELOPMENT, AND SETTLEMENT, BERLIN, SPRINGER AND PRAXIS, 22 , 2008. Also see GRANT H. HEIKEN,
DAVID T. VANIMAN AND BEVAN M. FRENCH LUNAR SOURCEBOOK (1991).

12 Fools Platinum, THE ECONOMIST, Available at https://www.economist.com/blogs/babbage/2013/01/asteroid-

mining (Last visited on 08.07.2016).

13 Id.

14 Debbie Siegelbaum, The companies vying to turn asteroids into filling stations

Available at http://www.bbc.com/news/magazine-29334645 ( Last visited on 08.07.2017)

15 Id.

16 RICKY J LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2012) Mike
Wall, Asteroid Mining may be a Reality by 2025 Available at https://www.space.com/30213-asteroid-mining-
planetary-resources-2025.html (Last visited on 07.07.2017).
Energy Corporation, Kepler Energy and Space Engineering etc. 17 These organisation have not
started commercially exploiting the space resources. However, they have started undertaking
initial steps to ensure space mining. For instance, Planetary Resources has started prospecting
the asteroids which may be mined in the future. 18 Deep Space Industries also seeks to deploy
satellites on celestial bodies to gauge the economic feasibility of mining these celestial
bodies.19 It also wishes to economically exploit the resources of outer space from 2020s.20

The author in this part will not address the economic viability of space mining, i.e. whether
the benefits of such activities would outweigh the cost. This is because even scholars have
diverse opinions regarding this question as most of them are unable to single out one resource
which could economically sustain the mission. 21 Even the private sector is aware of the high
costs associated with such space activities and seeks to reduce it to make space mining a
viable option in the future. Measures such as in-situ utilisation of the resource, redirection of
asteroid closer to Earth, etc assist in reducing the costs of these space activities.22

III. ANALYSING THE PREVIOUS STATE PRACTICE REGARDING EXPLOITATION OF

RESOURCES - IS THERE A CUSTOMARY INTERNATIONAL LAW PERMITTING SPACE
MINING?

In the annals of history, before private sector expressed its desire to mine, states had extracted
hundreds of kilograms from the celestial bodies.23 NASA, through its Apollo landings on the
Moon, extracted 842 pounds of lunar material for "research, education, and public display".24
Even the Soviet Union was responsible for the extraction of the resources from the surface of

17RAM S. JHAKU, JOSEPH N. PELTON, YAW O.M. NYAMPONG, SPACE MINING AND ITS REGULATION, 59-70
(2016)

18 Planetary Resources' First Spacecraft Successfully Deployed, Testing Asteroid Prospecting Technology on
Orbit, Available at http://www.planetaryresources.com/2015/07/planetary-resources-first-spacecraft-deployed/
(Last visited on 08.07.2017).

19 ) Mike Wall, Asteroid Mining may be a Reality by 2025 Available at https://www.space.com/30213-asteroid-

mining-planetary-resources-2025.html (Last visited on 07.07.2017).

20 Id.

21 Ian A. Crawford, Lunar Resources, A Review, Available at

https://arxiv.org/ftp/arxiv/papers/1410/1410.6865.pdf ( Last visited on 07.07.2017)

22 Id.

23 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41
Case W.Res J. Int'L 119 (2009)

24 Id. Also see, Space Law: Is Asteroid Mining Legal, Available at https://www.wired.com/2012/05/opinion-
asteroid-mining/ ( Last Visited on 07.07.2017).
the moon.25 Some of these resources which the Soviet Union obtained was also sold to private
individuals.26

Later, even other space faring countries have sought to exploit the resources on celestial
bodies. Japan through its Hayabusa probe was able to acquire 1,500 grains from Itokawa
asteroid.27 The ESA's Rosetta probe landed on a Comet in 2015 and sent data and images
from that asteroid. 28 In Feb 2016, private player in the British Government lobbied to
establish a regulatory regime governing space mining.29

While some argue that for 30 years taking possession of these resources constitutes a
customary international law principle in favour of mining of the celestial bodies, 30 however it
is the opinion of the author that such taking of the resources was merely for scientific
purposes and does not constitute a customary international law for the commercial
exploitation of the resources.31 Article I of the OST and Article 6 of the MOON reinforces
this argument as it promotes scientific investigation and allows for usage of space resources
in "quantities appropriate for the support of their mission".32 Since the treaty is silent about
the interpretation of “quantities appropriate”, hence the state faring nations should be
provided with the leeway for interpretation as they deem fit. Due to such interpretation of the
treaty there does not exist a customary international law supporting the commercial
exploitation of the resources.

IV. ANALYSING NATIONAL SPACE LEGISLATIONS FOR SPACE MINING.

It is due to the obligation stipulated in Article VI of the OST which requires State parties to
authorise and continuously supervise the activities of the private players, that many national
legislations regulating the mining activities of private players have cropped up.33

25 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41
Case W.Res J. Int'L 119 (2009)

26 Id.

27 Resources in Space, Available at http://www.spaceresources.public.lu/en/about.html# ( Last visited on

07.07.2017)

28 Id.

29 Id.

30 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41
Case W.Res J. Int'L 119 (2009)

31 Id.

32 Article 6, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies; Article I,
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies.

33 Article VI, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies.
In United States, a bill for the exploitation of the resources of asteroids namely "American
Space Technology for Exploring Resource opportunities in Deep Space (Asteroid)" was being
negotiated.34 Even though the bill was not adopted by the parliament, the provisions of this
bill was incorporated in the Spurring Private Aerospace Competitiveness and
Entrepreneurship Act of 2015 ( Hereinafter SPACE Act) which not only provided for the
mining of the asteroid resources, but under Title IV of the Act, provided for mining of the
space resources.35 The Act was primarily brought to facilitate the commercial exploitation of
the resources of the celestial bodies.36 It allowed the private individuals "to possess, own,
transport, use, and sell" the asteroid resources. Even though the Act assists commercial
exploitation of the resources, does not seek to claim "sovereignty or exclusive rights or
jurisdiction or ownership over the celestial body".

Recently, July 2017, Luxembourg also adopted a legislation which allowed for mining of the
resources present on the celestial bodies. 37 In order to boost the exploitation of the resources
of the celestial bodies, the government of Luxembourg has also signed an agreement with the
US based private player Deep Space Industries for testing technologies which will be in the
future used for the exploitation of the resources. 38 It also seeks to partnered with Planetary
Resources by signing Memorandum of Understanding with them. 39 To further incentivise the
private player, Luxembourg is also a 228 million dollar credit to further space exploitation
and encourage the private players to set up their base in their country. 40The United Arab
Emirates is also currently drafting a legislation for the allowing the commercial exploitation
of the resources in the celestial bodies.41

As a state cannot use the national legislation as a defence for not conforming with its
obligation in International law,42 it is important to understand whether International permits or
prohibits space mining.

34 RAM S. JHAKU, JOSEPH N. PELTON, YAW O.M. NYAMPONG, SPACE MINING AND ITS REGULATION, 131-145
(2016); P.J. Blount & Christian J. Robison, One Small Step: The Impact of the U.S. Commercial Space Launch
Competitiveness Act of 2015 on the Exploitation of Resources in Outer Space NORTH CAROLINE JOURNAL OF
LAW AND TECHNOLOGY, Vol 18, Issue 2, December 2016.

35 Id.

36 Id.

37 Vasudev Mukunth, Fiat Luxembourg: How a Tiny European Nation is Leading the Evolution of Space Law
Available at https://thewire.in/157687/luxembourg-space-asteroid-mining-dsi/ (Last visited on 07.07.2017);
Press Release, Luxembourg is the first European Nation to Offer a Legal Framework for Space Resources
Utilization, Available at http://www.spaceresources.public.lu/content/dam/spaceresources/press-
release/2017/2017_07_13%20PressRelease_Law_Space_Resources_EN.pdf (Last visited on 08.07.2017)

38 Id.

39 Id.

40 Id.

41 Lucy Barnard, UAE to finalise space law soon, Available at https://www.thenational.ae/business/uae-to-

finalise-space-laws-soon-1.219966 ( Last visited on 09.07.2017)
 V. THE VIABILITY OF SPACE MINING UNDER THE OUTER SPACE TREATY

In light of this credible threat of space mining in the near future, the author seeks to analyse
the viability of the same under the provisions of the Outer Space Treaty namely Article I,
Article II and Article IX.

a) Whether Article II of the OST also applies to private players ?

Due to the express prohibition on "National" appropriation under Article II of the OST,
initially scholars disputed the applicability of Article II to private players and non-
governmental.43 However, subsequently this discourse was not accepted as many authors
argued that the raison detre of Article II would be defeated if private player would not be
included within the ambit of Article II.44 They argued that states would use private entities to
flout the provisions of the Outer Space Treaty.45 Another rationale for the inclusion of private
player is due to the interpretation of Article VI and II of the OST. Article VI of the OST
provides that State parties have to bear the responsibility of private players, therefore the
private players have to comply "with the provisions set forth in the present Treaty".46 Hence,
pursuant to Article VI of the OST, activities of private players also have to comply with
provisions of Article II of the OST.47

Another rationale for the inclusion of the private players in based on treaty interpretation
under Article XVII of the OST.48 The Chinese text of the Outer Space Treaty holds equal
value as that of the English Text. 49 Since the Chinese text applies to private player, it further
clarifies that the Outer Space Treaty sought to only prohibit appropriation of private and
national players. This debate has further been put to rest as the IISL also issued a declaration
clarifying that private players should be within the ambit of Article II of the Outer Space

42 Article 27, Vienna Convention of the Law of Treatises.

43 Stephen Gorove, Interpreting Article II of the Outer Space Treaty, FORDHAM LAW REVIEW, Vol 37 Issue 3.

44 Patricia M. Sterns and Leslie I. Tennen, Privateering and Profiteering on the Moon and Other Celestial
Bodies: Debunking the Myth of the Property Rights in Space (2003) 31 ADV. SPACE RES. 2433

45Id.

46 Article VI, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies.

47 Statement by the Board of Directors of the International Institute of Space Law (IISL) On the Claims to
Property Rights Regarding the Moon and Other Celestial Bodies, Available at
https://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf (Last visited on 07.07.2017)

48 Article XVII, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies

49 RICKY J LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE 167 (2012);
BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW (1997); Article XVII, Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
Treaty.50 Hence private players are also proscribed from flouting the provision of national
non-appropriation mentioned under Article II of the Outer Space Treaty

b) Whether Asteroids are part of the definition of celestial bodies ?

The Outer Space Treaty does not provide a definition of a celestial body. 51 It is due to this
defect that some scholars argued that asteroids are not celestial bodies and therefore would
not be governed within the provisions of the Outer Space Treaty. 52 This argument was put
forth by certain states as they wanted a unfettered right to exploit the resources of asteroids
and not be governed under the regime set forth by Article II of the OST. 53 Their argument
was based on the rationale that extremely small asteroids would not come within the
definition of a celestial body54 However this position of law was clarified by Judge Manfred
Lachs who was of the opinion that regardless of the size, asteroids would be considered to be
part of the definition of celestial body.55 Since the Outer Space Treaty does not provide for a
classification of celestial bodies even small asteroids will be within the ambit of celestial
bodies within the meaning of the Outer Space Treaty.

c) Whether the Non Appropriation principle also prohibits the appropriation

of the resources of the celestial bodies?

The Preamble and Article I promote the 'use' of the Outer Space by all the State Parties to the
treaty.56 The interpretation of the word 'use' includes the exploitation of the natural resources
of celestial bodies.57 This has also been affirmed by the travaux préparatoires of the Outer

50 Statement by the Board of Directors of the International Institute of Space Law (IISL) On the Claims to
Property Rights Regarding the Moon and Other Celestial Bodies, Available at
https://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf (Last visited on 07.07.2017)

51 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies

52 RAM S. JHAKU, JOSEPH N. PELTON, YAW O.M. NYAMPONG, SPACE MINING AND ITS REGULATION, 117
(2016)

53 Id.

54 Id.

55 Id. Also see, MANFRED LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW-
MAKING 46(1972).

56Preamble , Article I Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies

57 Article I, I COLOGNE COMMENTARY ON SPACE LAW, 35 (Stephan Hobe, Bernhard Schmidt-Tedd &
Kai-Uwe Schrogl eds. 2009; H. L. VAN TRAA-ENGELMANN, COMMERCIAL UTILIZATION OF OUTER
SPACE LAW AND PRACTICE, 20 (1993), S.B. Rosenfield, “Use” in Economic Development of Outer Space,
in PROCEEDINGS OF THE 24TH COLLOQUIUM ON THE LAW OF OUTER SPACE, 73-77 (1981) 73-77
Space Treaty,58 which is used as a valid means of interpretation of treaty according to Article
32 of the Vienna Convention on the Laws of Treatises.59

The concern several scholars have is whether such use of the resources flout the Article II of
the Outer Space Treaty. It is the opinion of the author that it does not violate Article II of the
OST for several reasons. Firstly, in the absence of an express prohibition in Article II of the
OST for appropriating the resources of the celestial bodies, the same is permitted. 60 This is in
line with the Lotus Principle which stipulates that whatever is not "expressly prohibited is
permitted".61 The recent position paper on issued by the IISL on space mining adopts this
reasoning for validating resource mining.62

Second, several scholars argue that Article II of the OST is primarily a territorial conception,
and therefore the vesting of property rights in the resources of the celestial would not violate
Article II.63 Even eminent authors such as Stephan Freeland and Ram Jhaku have interpreted
Article II of the OST in a manner which allows for the exploitation of the resources of the
celestial bodies. 64 However, they impose a caveat that while conducting space mining, other
provisions of the treaty for instance, Article I, IX, etc. should not get violated. 65 For instance,
in a situation of the utilisation of the asteroid, the entire asteroid is used, then provisions of
"for the benefit and in the interest" or "due regard" provisions may get breached. 66 Even Bin
Cheng is of the opinion that Outer Space constitutes res extra commercium i.e. while
appropriation of the outer space and celestial bodies is prohibited by the treaty, the
appropriation of the resources of the same is permitted.67 Bin Cheng draws an analogy with
the regime governing the High Seas where the appropriation of the resources i.e. fishes is
permitted, under the ambit of the freedom of explore and use.68

58 Id.

59 Article 32, Vienna Convention of the Law of Treatises.

60 Article II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies

61 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7); Hugh Handeyside, The Lotus Principle in
ICJ Jurisprudence: Was the Ship Ever Afloat?, 29 MICH. J. INT'L L. 71 (2007).

62 IISL Position Paper on Space Resource Mining, Available at https://iislweb.org/iisl-position-paper-on-space-

resource-mining/ (Last visited on 20.07.2017)

63 Bin Cheng, The Extra Terrestrial Application of International Law, 1965 CURRENT LEGAL PROBES 132, 142.

64 I Article II, I COLOGNE COMMENTARY ON SPACE LAW, 53 (Stephan Hobe, Bernhard Schmidt-Tedd &
Kai-Uwe Schrogl eds. 2009

65 Id.

66 Id.

67 BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 400-401 (1997);

68 Id.
Third the provisions of the Moon Agreement throw light on the interpretation of the Outer
Space Treaty.69 Unlike the Outer Space Treaty, the Moon Agreement addresses the question of
the exploitation of resources in space. Article 11(3) of the Moon Agreement which only
prohibits the appropriation of the natural resources 'in place'.70 In other words, the Moon
Agreement does not prohibit the vesting of the property rights in the resources once, they are
extracted.

Lastly, the object and the purpose of the OST is to promote the free 'use' of outer space which
includes the exploitation of outer space.71 Further, the interpretation of the treaty should be
consistent with the object and purpose of the treaty. 72 Since, the object and the purpose of the
OST would be defeated if space mining is not allowed, hence it should be allowed. Hence,
Article II does not extend to minerals that have been extracted from outer space.73

VI. OTHER CONCERNS WITH THE EXPLOITATION OF THE RESOURCES OF THE CELESTIAL
BODIES.
a) Does Space Mining violate the Common Benefit and Province of All
Mankind Principle ?

Article I of the OST mandates that the use i.e. exploitation of the resources should be "for the
benefit and in the interest of all countries".74 Scholars such as Stephan Hobe have interpreted
this provision merely as an enabling clause which ensures that non-space faring nations
participate in space activities.75 Many authors have even refused to interpret it as a positive
obligation to share the benefits,76 but negative obligation which merely prohibits the states

69 See, Vienna Convention on the Law of Treatises, Article 31(3)

70 Article 11(3) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. C.Q.
CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE, New York, 262-263 (1982),

71 D. Goedhuis, Some Recent Trends in the Interpretation and the Implementation of the Rules of International
Space Law, 19 COLUMBIA J. OF TRANSNATIONAL L., 213, 219 (1981) 219. FABIO TRONCHETTI, THE
EXPLOITATION OF NATURAL RESOURCES OF THE MOON AND OTHER CELESTIAL BODIES- A PROPOSAL FOR A
LEGAL REGIME, 214 (2009).

72 MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON LAW OF TREATISES 428 (2009) ;
Gabčíkovo-Nagymaros ( Hungry/ Slovakia) 1997 I.C.J. reprinted in 37 I.L.M. 162 (1998).

73 FABIO TRONCHETTI, THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON AND OTHER CELESTIAL
BODIES- A PROPOSAL FOR A LEGAL REGIME, 214 (2009); G. Gal, Acquisition of Property in the Legal Regime
of Celestial Bodies , in PROCEEDINGS OF THE 39TH COLLOQUIUM ON THE LAW OF OUTER SPACE,
47 (1996);

74 Article I, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies

75 Article I, I COLOGNE COMMENTARY ON SPACE LAW, 35 (Stephan Hobe, Bernhard Schmidt-Tedd &
Kai-Uwe Schrogl eds. 2009; Also see, Luis F. Castillo Arganaras, Benefits Arising From Space Activities and
the Needs for Developing Countries (2000) 43 PROC. COLL. L. OUTER SPACE SP. 50.

76 RICKY J LEE. LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE, 158 (2012),
BIN CHENG , STUDIES IN INTERNATIONAL SPACE LAW 234-55 (1998).
from harming the interest of other states during space activities. 77 Even subsequent State
practice which is used as valid means of interpretation of a treaty 78 also allude that the
benefits to be accrued should only be at the volition of the state parties. 79 In the absence of a
positive obligation on the states to share the resources in space, states are not violating the
provisions of Article I of the Outer Space Treaty by not economically and physically sharing
the resources of space.

Some scholars have argued that commercialisation of celestial bodies may even benefits
mankind.80 They use the commercialisation of the geospatial orbit as an examples to show
that commercialisation has in the past benefited mankind. 81 Hence, for the purposes of space
mining, there are doubts whether this provision mandates the actual sharing of the profits
from space mining or sharing the resources obtained from space mining.

b) Environmental Concern under Space Mining

There can be environmental hazards from space mining activities, similar to that observed
from mining on the surface of the Earth. 82 Formation of debris and dust is one of the primary
concerns which may arise from space mining activities.83 Debris formation poses a potential
threat to life and property in space due to the high velocity with which it travels. 84 It also has
a cascading effect which aggravates the situation85 This problem of environmental hazard is
further exacerbated in space as Moon and other asteroids do not have an atmosphere which
mitigates the damage caused.

77 RICKY J LEE. LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE, pg 158,
Edwin W. Paxson, Sharing the Benefits of Outer Space Exploration- Space Law and Economic Development, 4
MICH. J. INT’L L., 487, 494 (1993)

78 See, Vienna Convention on the Law of Treatises, Article 31(3)

79 UNGA, "Declaration on International Cooperation in the Exploration and Use of Outer Space for the
Benefit of all States, Taking into Particular Account the Needs of Developing Countries. " 13th Dec, 1966.

80 M. BENKÖ, W. DE GRAAFF & G. C. M. REIJNEN, SPACE LAW IN THE UNITED NATIONS, 74

(1985), 74; OGUNSOLA OGUNBANWO, INTERNATIONAL LAW AND OUTER SPACE ACTIVITIES, 214
(2013), 214.

81 FABIO TRONCHETTI, THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON AND OTHER CELESTIAL
BODIES- A PROPOSAL FOR A LEGAL REGIME 169 (2009)

82Hamza Hameed, The Legality and Ethics of Mining an Asteroid, Available at

https://www.spacelawresource.com/single-post/2017/03/03/The-Legality-and-Ethics-of-Mining-an-Asteroid
( Last visited on 07.07.2017)

83 Id.

84 Vishakha Gupta (2016) Critique of the International Law on Protection of the Outer Space Environment,
Astropolitics, 20-43 INTERNATIONAL JOURNAL OF SPACE POLITICS AND POLICY.

85 J.N. Pelton, The Space Debris Treat and the Kessler Syndrome, Available at
file:///C:/Users/abc/Downloads/9781461467137-c2.pdf (Last visited on 07.07.2017)
Other environmental hazards from space mining may arise due to the proposed modification
of the orbit of the asteroids to make it closer to that of ISS, Earth or Moon. 86 States and
private player are proposing this to make space mining economically feasible. 87 Such changes
in the orbital trajectory may increase the chances of collisions in space.88 This tantamount to
threat of life and property in space and possibly on Earth and the creation of space debris.89

In light of the environmental concerns mentioned above, the current legal regime i.e. Article
IX of the Outer Space Treaty is insufficient to tackle them. Outer Space Treaty only protects
against 'harmful contamination' which has a very limited scope.90 Certain scholars argue that
debris may not be considered to be a contaminant and hence is outside the ambit of Article IX
of the OST.91

Another inadequacy of the Outer Space Treaty is with regard to the enforcement mechanisms
in case of the violation of one of the provisions of the treaty. In the absence of a enforcement
mechanism, states usually take recourse of diplomatic negotiations and consultations which
often does not provide for a effective remedy in the case of a violation of a treaty norm. 92
Even the Liability Convention cannot be taken recourse of as the definition of damage under
Article I (a) of the Liability convention only pertains to damage caused to States, persons or
property.93 In light of this, environmental damage cannot be said to be within the ambit of the
Liability Convention.94

Therefore in light of the environmental harms from space mining activities, the current
regime governing environment in insufficient to tackle such concerns. To remedy the
inadequacies of the Outer Space Treaty, some scholars have argued to import principles of
International Environmental law with the help of Article III of the OST, into space law. 95
Hence scholars have argued to import principles such as Polluter pay principle, Precautionary

86 John Brophy; Fred Culick; Louis Friedman; Asteroid Retrieval Feasibility Study" Keck Institute for Space
Studies, California Institute of Technology, Jet Propulsion Laboratory.

87 Id.

88 RUPERT W ANDERSON, THE COSMIC COMPENDIUM: SPACE LAW 105.

89 Id.

90 Article IX, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies; Also see Vishakha Gupta (2016) Critique of the International
Law on Protection of the Outer Space Environment, Astropolitics, 20-43 INTERNATIONAL JOURNAL OF SPACE
POLITICS AND POLICY.

91Sandeepa Bhat B, Application of Environmental Law Principles for the Protection of the Outer Space
Environment: A Feasibility Study. ANNALS OF AIR AND SPACE LAW Vol XXXIX (2014)

92 Id.

93 Article I, Convention on International Liability for Damage Caused by Space Objects.

94 Sandeepa Bhat B, Application of Environmental Law Principles for the Protection of the Outer Space
Environment: A Feasibility Study. ANNALS OF AIR AND SPACE LAW Vol XXXIX (2014)
Principle, Intergenerational and Intra generational equity, Sustainable Development etc. in
space law.96

c) Impact of Space Mining on Cooperation between State Parties.

Cooperation between the state parties is the underlying tone with which the State Parties to
required conduct their space activities. The preamble, Article I, Article IX of the Outer Space
require state parties to cooperate while conducting their space activities. 97 Article IX requires
the state parties to conduct their activities with "principles of co-operation and mutual
assistance" and with "due regard to the corresponding interest of all Other State Parties" 98.
Article I of the OST requires the State Parties to conduct their activities "without
discrimination," "on the basis of equality" and 'in accordance with International Law" 99

It is the concern of the author that space mining activities might violate principles of
cooperation which form the cornerstones of the Outer Space Treaty. For instance, if two
private players mine the same asteroid, would that amount to a state having "reason to
believe" that the activities of another state is causing "potentially harmful interference" . With
words such as "potentially harmful interference" being ambiguous and subjective, one might
argue that principles of cooperation may be threatened by such activities. 100 More over the
Treaty does not adequately address the question of violation of principles of cooperation as
the treaty does not foresee or remedy the consequences of a failed consultation. The second
situation of an asteroid vanishing due to its exploitation as foretold by eminent scholars Ram
Jhaku and Stephen Freeland.101 Some scholars argue that this would be in violation of the
principles of cooperation stipulated under Article I and Article IX of the OST. 102 The another
example is of a Country discovering a asteroid which is most economically feasible to
exploit, and another country using the information, exploits the asteroid entirely. In such a
situation the country would have violated the principles of due regard mentioned under the

95 Article IX, I COLOGNE COMMENTARY ON SPACE LAW, 35 (Stephan Hobe, Bernhard Schmidt-Tedd &
Kai-Uwe Schrogl eds. 2009

96 Sandeepa Bhat B, Application of Environmental Law Principles for the Protection of the Outer Space
Environment: A Feasibility Study. ANNALS OF AIR AND SPACE LAW Vol XXXIX (2014)

97 Preamble, Article I, Article IX Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies

98 Article IX Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies

99 Article I Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies

100 Vishakha Gupta (2016) Critique of the International Law on Protection of the Outer Space Environment,
Astropolitics, 20-43 INTERNATIONAL JOURNAL OF SPACE POLITICS AND POLICY.

101 Article I, I COLOGNE COMMENTARY ON SPACE LAW, 35 (Stephan Hobe, Bernhard Schmidt-Tedd &
Kai-Uwe Schrogl eds. 200

102 Id.
Article IX of the Outer Space Treaty. 103 Another possible situation is where the developed
countries mine all the near earth asteroids which are economically feasible and leave the far
away asteroids for the developing countries to exploit which may not be economically
feasible.

In the absence of a regime governing the exploitation of the resources of the celestial bodies,
there may be possible violations of the principle of cooperation, which is the grunt norm of
the Outer Space Treaty.

VII. PROPOSED REGIME TO GOVERN THE EXPLOITATION OF RESOURCES

Some scholars propose the establishment of an International regime as given under Article
11(5) of the Moon Agreement to govern the "exploitation of the natural resources of the
Moon when such exploitation becomes feasible".104 The establishment of an International
regime is considered an equitable solution for exploitation of the resources as it provides for
mandatory sharing of the benefits and also obligates the states parties to undertake their
activities in a sustainable manner.105 However the establishment of an International regime
may be a utopian concept as major space faring countries do not want to mandatorily share
the benefits of their space activities with non-space faring countries. 106 The only space faring
nation which is part of Moon Agreement is Australia.107

To propose a solution for governing the exploitation of the resources of the celestial bodies
one has to look at other res communis regimes i.e. Antarctica and Deep Seabed. In Antarctica
nations have agreed to cease the exploitation of natural resources for fifty years108 This was
done to protect the environment of Antarctica thereby, preserving its ecosystem.109 Hence, one
solution proposed by the author is a ban on space mining. 110 However, the author is not in
favour of this solution as exploitation of the resources of outer space may provide mankind
with abundant benefits, and therefore a restricted manner of exploitation of the resources
from outer space is suggested by the author.

103 Article IX Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies

104 Article 11(5) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

105 Carl Christol, An International Regime for the Moon, Article 11, Paragraph 5 of the 1979 moon Treaty for
the Moon, PROC. 23RD COLLOQUIUM ON L. OUTER SPACE, 139, 146 (1980).

106 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space,
41 Case W. Res. J. Int'l L. 119 (2009)

107 Id.

108 Id.

109 Id.

110 Id.
 The other regime from where one can draw comparisons is the regime governing Deep
Seabed. Due to the precious resources that the seabed has, that the state parties have accorded
it the status of Common Heritage of Mankind under United Nations Conventions on the Law
of the Sea (Hereinafter UNCLOS) Part IX, Article 136. 111 The UNCLOS regime provides
the establishment of an International Seabed Authority, which governs the exploitation of
resources on the basis of a licensing regime. 112 Due to the establishment of the International
Seabed Authority, one needs to seek its permission for gaining exclusive rights to mine the
resources113 The International Seabed Authority ensures that there is mandatory distribution
of the benefits of exploitation to the developing countries. 114 Furthermore, it ensures that
environmental protection is also granted while exploiting the resources. 115 It also ensures
sustainable development while exploiting the resources from the Deep Seabed. 116 Hence, the
establishment of an international regime is the most suitable approach to govern the
exploitation of the resources in space. Concerns of the developing countries, environment,
licensing policy etc can be tackled adequately with the establishment of such regime.

One can draw comparisons between the regime governing mining of the Deep Seabed and
Space Resources. 117 However, it is highly unlikely that the developed countries would sign
such an international regime and accept outer space as a common heritage of mankind, as it
would require sharing of the benefits with the other non space faring countries. It is due to
this reason that the MOON Agreement has only 17 countries that have ratified to the same. 118
Such problems of unwillingness of the counties to sign the agreements which mandate benefit
sharing was also observed in UNCLOS, as United States has not ratified the same.119

VIII. CONCLUSION

The advent of various players seeking the mine the celestial bodies has raised various
questions regarding the legal ramification of the same. Many legal scholars questioned the
viability of such activities in light of the obligation of the states under the Outer Space Treaty

111 Article 136, United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

112 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space,
41 Case W. Res. J. Int'l L. 119 (2009)

113 Id.

114 Id.

115 Id.

116 Id.

117 Tanja Masson-Zwaan & Bob Richards, International Perspectives on Space Resource Rights, SPACENEWS
(Dec. 8, 2015), http://spacenews.com/op-ed-international-perspectives-on-space-resource-rights/.

118https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXIV-2&chapter=24&clang=_en,
accessed on 14.08.2017

119 U.S. Department of State Bureau of Public Affairs, Fact Sheet 96/03/19: U.S. Oceans Policy & Law of the
Sea Convention, http://dosfan.lib.uic.edu/ERC/environment/f act_sheets/960319.html (last visited 07.07.2017)
and Moon Agreement. Since the Moon Agreement has very few ratification, scholars
questioned its viability in light of the Outer Space Treaty. It is the opinion of the author
which is in concurrence with the opinion of various scholars that the exploitation of the
resources does not per se violate the principle of non appropriation which has been stipulated
under Article II of the OST. The prohibition under the Outer Space Treaty is only with
territorial in nature, and does not prohibit the exploitation of the space resource. However, in
the absence of a regulation governing the exploitation of the resources, there is unfettered
power of exploitation. It is due to the unfettered power of exploitation that there may be
instances that other provisions of the Outer Space Treaty may get violated. For instance, there
may be possibilities of violation of core tenets of cooperation, environmental law principles
due to debris creation, etc. Hence, the future of space mining is bleak, as the operation of the
same may flout certain provisions of the Outer Space Treaty.

These ambiguities in the international agreements are furthered by the lack of clarity in the
national legislations. National space legislation do not provide for a regulatory regime
governing the exploitation of the resources. Even the US Space Act has not yet provided for a
licensing regime for its private players. Hence, even in the most advanced space faring state,
the future of space mining stands on tenuous grounds in light of the ambiguity with respect to
the activity. Ideally these licensing regimes should contain certain safety standards, insurance
policy, sustainable ways of exploiting the resources etc. Moreover, all the space faring nations
which seek to exploit the resources should have a common thread between the licensing
regimes for all these countries. This would ensure uniformity in licensing regime, which
would further cooperation between the space faring nations. In the absence of the same, there
may be possible violation of the OST in the future by such mining activities.

It is the opinion of the author that it would be more equitable to have an International Regime
which would govern the exploitation of the resources as stipulated by the Moon Agreement.
This would require the signing and ratification of the Moon Agreement by the major space
faring countries across the world and declare outer space to be a common heritage of
mankind..Such an establishment of a regime would remedy the problems as mentioned in the
current legal regime. The Moon Agreement abides by the principles of sustainable
development, concerns for the environment, adheres to the needs of the developing countries
etc. For drafting such a regime one can draw analogies from the deep seabed mining regime
as mandated under the UNCLOS. Even though this seems like a preferable solution is does
not seem like a foreseeable solution.