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Authors: Bholenath
Keywords: harmful contamination, mining, outer space treaty, private appropriation
Abstract: Companies like Orbital Sciences Corporation, Mars One, Bigelow Aerospace, Planetary Resources, and Deep Space Industries are planning to scout for the outer space resources which are worth trillions. This development raises prima facie two questions of law. Firstly, does the Outer Space Treaty recognize a state’s right to mine outer space resources? Secondly, does the Outer Space Treaty recognize a state’s right to authorize its private companies to mine outer space resources? Subsequently, is there a need for a regulatory mechanism for space mining to protect private explorers? In this light, the author, in the first section of the article, shall discuss the precise scope of the terms such as “use”, “national appropriation” and “harmful contamination” under the current outer space treaty regime and then examine whether and how states are entitled to mine space resources. The scope of the Outer Space Treaty cannot be frozen in time as space technology is exponentially growing and thenceforth recourse must be taken to its “evolutive interpretation” in order to protect the effectiveness, object, and purpose of the treaty. Article I of the Outer Space Treaty stipulates about the rights of states in outer space whereas Article II and Article IX prescribes the limitations on these rights. The drafters by not adopting any rigid language with regard to the scope and ambit of the word “use” have allowed for the expansion of its scope with the needs of time and changing technology. Since the treaty is silent on the issue of space resource mining, the author shall submit, by taking recourse to the travaux preparatoires, principles of interpretation used by ICJ and various tribunals and opinions of space lawyers, that such an activity is a mere exercise of rights prescribed under Article I and does not fall in the scope of the restrictions mentioned in Article II and Article IX. Under this section, the author shall propose an “interpretative reorientation” of the relevant articles of the Outer Space Treaty to establish that space mining is a “use” of outer space and does not reach the threshold of “national appropriation.” Furthermore, in the second section of the article, the author shall discuss how private entities can mine outer space resources without violating the “national appropriation” clause. By reading Article II in conjunction with Article VI of the Outer Space Treaty, the author shall submit how states can authorize its private companies to mine outer space resources. Additionally, referring to the draft resolutions and contemporary state practice, the author shall establish that the treaty is flexible enough to incorporate authorization of space mining activities to private entities. The author shall conclude the article by proposing a regulatory mechanism for space mining which is perhaps the last barrier for private space mining. The Outer Space Treaty does not prohibit private explorers from space mining but, unless they comply with their obligations under the treaty, they are bound to fail the legality test in due course of time. For this purpose, the author shall suggest the establishment of an international regulatory body under the aegis of the United Nations which will ensure compliance with the existing obligations of international space law by these space mining entities.