(EN) Breaking the Deadlock in Space Mining Legal Debate

Nikola Schmidt, Martin Švec

Schmidt, Nikola, and Martin Svec. “Breaking the Deadlock in the Space Mining Legal Debate.” New Space Forthcoming (2021).

We offer a novel perception on breaking the deadlock over the space mining governance debate. We do so by unveiling the dynamics of how certain policy making conducted under the pressure of the legal uncertainty associated with the lack of a legal framework for the utilization of space resources leads to actions driven primarily by a national outlook – namely interests towards the respective nation state. The unilateral approaches adopted by the USA, Luxembourg, the UAE and Japan have been criticized by both members of the UN COPUOS and scholars since they do not fully address the cosmopolitan ideas enshrined in international space law. This situation of current legal uncertainty is not visibly attractive to big corporations capable of launching a space mining economy, and the recent fate of tiny startups, which were sold in order to obtain technology unrelated to space mining, finally confirms the case in point. We argue and show that a properly designed national legislation reflecting cosmopolitan ideals can become the key to breaking this deadlock. More specifically, the national legislation needs to reflect principles known from political science theory referring to legal cosmopolitanism and foreign policy creativity, making the given state an agent of cosmopolitan responsibility. Otherwise, national law can hardly be compatible with both customary international law and the Outer Space Treaty, particularly with the requirement that the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development. The solution to the deadlock we offer here is not a unique key to a unique lock but rather an explanation of why and how we should shift our modes of perception of what we are trying to achieve here.