The Commercial Space Launch Act, which includes provisions allowing American companies the right to keep resources that they mine in space, was recently signed into law by President Barack Obama. While the act has been hailed as groundbreaking in the United States, the space mining title has gotten an angry reaction overseas. In a Friday article in Science Alert, Gbenga Oduntan, Senior Lecturer in International Commercial Law, University of Kent, condemned the space mining provisions as environmentally risky and a violation of international law. Ram Jakhu, a professor at Canada’s McGill University's Institute of air and space law, adds that space mining is a violation of the Outer Space Treaty and should not be allowed.
Oduntan’s environmental argument is expressed thus:
“So what’s at stake? We can assume that the list of states that have access to outer space - currently a dozen or so - will grow. These states may also shortly respond with mining programmes of their own. That means that the pristine conditions of the cradle of nature from which our own Earth was born may become irrevocably altered forever - making it harder to trace how we came into being. Similarly, if we started contaminating celestial bodies with microbes from Earth, it could ruin our chances of ever finding alien life there.
“Mining minerals in space could also damage the environment around Earth and eventually lead to conflict over resources. Indeed what right has the second highest polluter of Earth’s environment got to proceed with some of the same corporations in a bid to plunder outer space?”
Leaving aside the anti-American, anti-capitalist swipe, Oduntan’s argument could be applied to forbid even the peaceful exploration of space, lest space probes and astronauts “contaminate” the “pristine’ nature of space.
Both gentlemen try to invoke the Outer Space Treaty as binding against space mining, a dubious position. Oduntan attempts to claim that the notorious Moon Treaty, of which the United States is not a party to, is still binding as “customary law,” an odd position to take that suggest that the parties to an agreement can force their views on those countries that have chosen not to be parties by fiat.
An event of cosmic proportions occurred on 18 November when the US congress passed the Space Act of 2015 into law. The legislation will give US space firms the rights to own and sell natural resources they mine from bodies in space, including asteroids. Although the act, passed with bipartisan support, still requires President Obama’s signature, it is already the most significant salvo that has been fired in the ideological battle over ownership of the cosmos. It goes against a number of treaties and international customary law which already apply to the entire Universe.
The new law is nothing but a classic rendition of the "he who dares wins" philosophy of the wild west. The act will also allow the private sector to make space innovations without regulatory oversight during an eight-year period and protect spaceflight participants from financial ruin. Surely, this will see private firms begin to incorporate the mining of asteroids into their investment plans.
Supporters argue that the US Space Act is a bold statement that finally sets private spaceflight free from the heavy regulation of the US government. The misdiagnosis begins here. Space exploration is a universal activity and therefore requires international regulation.
The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbridled commercial exploitation of outer-space resources. These principles are found in agreements including the Outer Space Treaty of 1967 and the Moon Agreement of 1979.