The third part of our #SWMEThemes on the Middle East and Space Resources is an interview with space law attorney Michael J. Listner of Space Law and Policy Solutions, and author and publisher of space law and policy briefing-letter The Précis. Michael – a friend of SpaceWatch Middle East –provides readers with a learned yet skeptical view of the legal context for space resource exploitation.
SWME: You’ve argued that the legal regime governing space activities does not necessarily allow for states and private companies to exploit space resources. Why?
Listner: The legality or illegality of space resources isn’t a black or white issue; the argument that Articles I and II of the Outer Space Treaty (OST) allows for the exploitation of space resources may very well prevail, unless a certain scenario unfolds, which would give the 1979 Moon Agreement* new legitimacy. Aside from that potential, it’s the gray of the issue that concerns me, not the red line that delineates whether it is legal or not. Space resources at its core is a legal and geopolitical issue and the non-appropriation of celestial bodies provision of the OST’s Article II does not include the resources on a celestial body. This is the fundamental interpretation, which was supported in a quasi-legal, consensus opinion that justifies the exploitation of space resources. Thus, the answer to your question isn’t why I think space resource exploitation is not permitted but rather why does this interpretation of Article II prevail and whether the customary muscle of the United States through soft-power and an eventual state practice will shape international law to make space resources acceptable to the international community.
SWME: In light of this, what – if anything – would need to change in the legal regime governing space activities to allow the exploitation of space resources.
Listner: It’s not about what needs to be changed in the legal regime of international space law I am concerned about. It’s how a customary interpretation of the Outer Space Treaty to permit the exploitation of space resources will change the outer space legal regime. Conjuring space resources through a customary legal posture could have unforeseen legal and geopolitical ramifications down the road. International law is akin to a body of water and when interpreted through state practice or custom, it is uncertain what the ripples of that interpretation will have. It could be as harmless as dropping a small stone in a pond or as significant as dropping a large, flat rock in a mud puddle. This is the dilemma with space resources: the thrill and promotion of the exploitation of space resources has inspired a giddy legal and political atmosphere that has squelched the more central question what the consequences to the international legal regime for not only outer space will be but also for international law as a whole. Bottom line: I am concerned about what the rule of law is and how custom vis-à-vis state practice will affect the rule of law in general much in the same way the rule of law via the United Nations Convention on the Law of the Sea (UNCLOS) is being challenged and in turn refashioned through state practice in the South China Sea.
SWME: How difficult – even feasible – is such change?
Listner: An overt change to the current body of treaty law encompassing the outer space legal regime is untenable in the current domestic legal and geopolitical environment. More to the point, the same legal uncertainty in the Outer Space Treaty that created the need for the idea of the exploitation of space resources also fosters the ability to promote it through custom. It’s a two-edge sword in that industry and non-governmental organizations who support global governance encourages the very ambiguity in the Outer Space Treaty related to space resource exploitation that initially dissuaded investment and backing of space mining activities. The Outer Space Treaty won’t be amended via top-down action, but it could be constructively amended and perhaps even result in a de facto withdrawal through custom with bottom-up initiatives like Title 51, Chapter 513 of the United States Code.**
SWME: Based on your opinion, what does this mean for investing in companies looking to exploit space resources?
Listner: Customary acceptance of space resources is a long game. This isn’t a slam-dunk despite the hyperbole of the media and some proponents. Title 51, Chapter 513 is a starting point designed to give investors some legal confidence so they would write the checks as is the quasi-legal consensus opinion made shortly after the United States’ space resource law was passed. There is still a lot of work to be done for exploitation of space resources to gain customary acceptance and that recognition may not be solidified until a private company actually performs resource extraction. Between now and then, the issue of space resources exploitation could be challenged and stopped dead in its tracks until and unless a compromise is reached. What this means for investors is they should keep an open mind and look at all aspects of the issue, including the unfavorable ones, so they can more accurately assess their risk and make fully-informed decisions. All in all, space resources exploitation is a gamble and investors should hedge their investments accordingly.
SWME: What would your policy advice be to Middle East space policy makers examining the possibility of getting involved in exploiting space resources?
Listner: Read the fine print on space resources. Proponents of space resources are painting a colourful picture, which the media is accenting, and even resorting in some cases to identity politics to quell resistance. Just like investors, Middle East policy-makers should look beyond the headlines, the sales pitch, and the potential financial rewards and seek input from all sides of the issue. It’s imperative for Middle East domestic interests that policy-makers understand that the exploitation of space resources will have an impact on the current international legal regime not only for outer space but international law in general. With that understanding, policy-makers should take into consideration how adopting space resources into their domestic legal regime will affect their standing and security in the international arena but more importantly with their neighbours, which is critical bearing in mind that five Middle East countries (Kuwait, Lebanon, Morocco, Kingdom of Saudi Arabia, and Turkey) have acceded to the 1979 Moon Agreement.
Michael J. Listner is an attorney and space policy expert. He is the founder
* The 1979 Moon Agreement reaffirms and elaborates on many of the provisions of the Outer Space Treaty as applied to the Moon and other celestial bodies, providing that those bodies should be used exclusively for peaceful purposes, that their environments should not be disrupted, that the United Nations should be informed of the location and purpose of any station established on those bodies. In addition, the Agreement provides that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.
** CHAPTER 513—SPACE RESOURCE COMMERCIAL EXPLORATION AND UTILIZATION
Sec. 51301. Definitions.
51302. Commercial exploration and commercial recovery.
51303. Asteroid resource and space resource rights.
2015—Pub. L. 114–90, title IV, §402(a), Nov. 25, 2015, 129 Stat. 720, added chapter 513 and items 51301 to 51303.
- 51301. Definitions
In this chapter:
(1) Asteroid resource.—The term “asteroid resource” means a space resource found on or within a single asteroid.
(2) Space resource.—
(A) In general.—The term “space resource” means an abiotic resource in situ in outer space.
(B) Inclusions.—The term “space resource” includes water and minerals.
(3) United states citizen.—The term “United States citizen” has the meaning given the term “citizen of the United States” in section 50902.
- 51302. Commercial exploration and commercial recovery
(a) In General.—The President, acting through appropriate Federal agencies, shall—
(1) facilitate commercial exploration for and commercial recovery of space resources by United States citizens;
(2) discourage government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration for and commercial recovery of space resources in manners consistent with the international obligations of the United States; and
(3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.
(b) Report.—Not later than 180 days after the date of enactment of this section, the President shall submit to Congress a report on commercial exploration for and commercial recovery of space resources by United States citizens that specifies—
(1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government; and
(2) recommendations for the allocation of responsibilities among Federal agencies for the activities described in paragraph (1).
References in Text
The date of enactment of this section, referred to in subsec. (b), is the date of enactment of Pub. L. 114–90, which was approved Nov. 25, 2015.
- 51303. Asteroid resource and space resource rights
A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.