The Future Should Be Through The Viewport On An Asteroid

The Future Should Be Through The Viewport On An Asteroid
Asteroid P/2010 A2 | Credit: NASA, ESA, and D. Jewitt (UCLA)

Wednesday, April 8, 2015

Space Exploitation: Space Law For Space-Based Endeavor I

"Like the complex legal issues ushered in by the information age, resource extraction as envisioned by Planetary Resources will likewise usher in complex legal challenges that must be met preemptively or reactively. The question is whether the current legal regime of outer space law is ready to meet the challenges soon to be imposed upon it by the commercial activities proposed or will it crumble in favor of a new legal regime especially tailored to meet those challenges." - Michael J. Listner, Space Safety Magazine

Expanded space exploitation is the near future of humanity in space, in the form of asteroid mining. Although there are certainly cost reduction challenges, market uncertainties and technical innovations required for realization of widespread space-based endeavor, perhaps the greatest obstacle to space exploitation is space law, or more accurately, the relative lack thereof for asteroid mining in space. Developing effective, transparent, comprehensive and understandable space law is essential to long-term expanded space exploitation, as endeavors such as asteroid mining are inevitable, and a lack of rule of law will only result in a legal quagmire and serious problems in the near future.
"Space, itself, is a global commons and is governed by international law." - Joanne Gabrynowicz
Space lawyer Joanne Gabrynowicz argued before Congress that the potential resource extraction industry of asteroid mining suffers from an ambiguous legal environment, and that the international perspective ought to be considered as well. Gabrynowicz also testified that that space was a global commons, which is akin to the Antarctic and high seas, where no particular sovereign claim is recognized over any other. The relative lack of sovereignty by international authorities and national bodies generates ambiguity for asteroid mining, and to the short-term commercialization of space in general.

One approach to asteroid mining considered by many is an international regulatory body, which regulates, limits and licenses asteroid mining. For instance, one might argue for a resource-based set of constraints for asteroid mining, in which the amount of resources which a space miner may acquire from an asteroid is limited to a discrete and specific amount, of which any excess would result in sanctions from the international body and any related enforcement mechanism. Although perhaps it may be argued that area or region based mining claims would be a better and more measurable approach for asteroid mining, nevertheless the implementation of an international body for regulating and licensing asteroid mining is a very appealing and rather intriguing notion.
"There is a huge gap between China’s bustling space industry and impressive space exploits on the one hand and the only sparse national regulation in place on the other. Although legislation activities may increase in the nearer future, the overall mode of enacting rules only to tackle specific demands will persist for the time being. The realization of a comprehensive space law is delayed into the mid-term future and obviously not regarded as a priority in China."PRC Space Law: Current Status and Overview
Of course, an international regulatory body for space mining may be slow to form, due to differences in perspectives and preferences between nations. Also, space-faring nations may simply elect to manage their own affairs, interacting with other nations and their laws only as required by national interests. For instance, in the United States, given the concentration of prospective space mining firms in the United States, as well as the FAA review of the Bigelow Aerospace habitat, it would appear that unilateral action is the most probable outcome for space law legislation, at least in the immediate future. For the United States, this unilateral action is likely to take the form of the ASTEROIDS Act, which stalled in committee last year.
"I do not think that this is the consensus in the commercial entities interested in asteroid mining, nor would it probably be worth the hassle. Let's get the industry started, then we can work on improving the legal framework once we know what the real issues are." - Asteroid Initiatives, LLC
With regard to the United States, there are a number of significant issues created by a lack of clarity for space mining, which may result in a serious legal quagmire due to its inevitability. For example, given the sheer number of government agencies and potential overlap in power, with regard to space and space-related policies, there may emerge both deep gaps and extensive redundancy and repetition in space mining regulation. It is imperative that any legislation be clear, especially in terms of agency authority. In her written draft testimony to Congress, Gabrynowicz noted that the vagueness of government authority in terms of asteroid mining could result in over-regulation of a nascent industry:
"Private sector asteroid resource exploration and utilization is an
unprecedented enterprise. It will raise novel issues requiring a wide range of
entrepreneurial, technical, economic, legal, policy, space situational awareness,
and diplomatic expertise. No one agency houses all that will be needed. Absent a
clearer statement of which agency is responsible for what kind of regulation, an
unpredictable over-regulated environment that relies on ad hoc dispute resolution
could be created. It will produce unnecessary risk that is counterproductive to
industry." - Joanne Gabrynowicz, Congressional testimony, ASTEROIDS Act
Although there are certainly resources available on space law, along with some compiled guidelines, certainty in space law nevertheless remains an elusive issue for asteroid mining. Ultimately, space mining firms will elect to go to space and mine asteroids, whether or not there is law behind it, as in the final analysis, law will form around such endeavors in order to capture tax value, and to ensure that national interests are met by respective nations involved in asteroid mining. However, it will be less messy, less litigious, less inefficient and perhaps even less violent, if space law were to be better considered by national interests and regulatory bodies of the world. At the very least, unilateral action by spacefaring nations would provide additional guidelines and fuzzy white lines for space-based activity, which in turn would expedite and increase the growth rate for expanded space exploitation.
"Commercial exploitation of such resources has the potential to create significant positive externalities that could improve the standard of living for all of mankind. Therefore...[] the interests of private actors should be incorporated into an amended body of international aerospace law, one that encourages capable entities—whether public or private—to engage in spacefaring missions for economic gain."Kyle A. Jacobsen, Temple Law Review
After all, if one of the greatest stumbling blocks to the first step to a solar system based civilization is rooted in the precepts of the law, especially as it relates to nomenclature, property rights and national power, it is imperative that these relatively minor issues be addressed, so that the greater technical and scientific challenges of our space exploration era may be more swiftly resolved, so as to more quickly expand our horizons, for the betterment of all humanity, in the form of space exploitation, such as asteroid mining.