CYIL vol. 13 (2022)

CHARLES BIRD CYIL 13 ȍ2022Ȏ announced that Hayabusa 2 was thought to have successfully deployed its Small Carry-on Impactor to the surface of Ryugu and would confirm this as soon as a crater was observed. 3 Its capsule returned to Earth on 6 December 2020 with evidence in hand. 4 The preliminary findings of the sample found that the material was light enough to float on water and it was described as “fluffy” by the project examining the material. 5 This may seem unrelated to the celestial mining, but it is a proof of concept, albeit a fraction of the scale I am discussing, that removing sub-surface material from an asteroid is possible. However, Japan’s research and removal of part of Ryugu is distinguished from the topic of this paper, as states have always been permitted to remove material from celestial bodies for scientific purposes since the inception of space law. 6 Other nations too have been carefully examining their own approach to developing a space resource industry. However, it appears that they have been focusing on the legal issues regarding this field. States like the United States and Luxemburg, Japan, and the UAE have been particularly active with domestic legislation. The primary issue for this paper, and in my opinion, the most impactful in the industry, is whether some domestic and/or international law would permit private exploration of space resources and, most importantly, whether full proprietary rights can be obtained for these resources. There is of course no one answer to this issue, which makes the topic ripe for research. The following article is meant to briefly touch on several different states’ approach, with a focus on U.S. law, as well as to point out some of the holes in this area as a whole. The US Legislation The United States government predicts that by 2025 commercial mining of asteroids will become a reality. 7 The Asteroid Mining Corporation expects to have its first working mine operational in 10 years. 8 Huge amounts of capital are involved in financing these new ventures that might very well end in financial tragedy. Unfortunately, Planetary Resources became a signifier of this type of bust. Showing the difficulty in this field. The company had two operating satellites in orbit when it exhausted its funds and was then subsequently acquired by ConsenSys. 9 But as 3 Japanese Aerospace Exploration Agency, Press Release, Asteroid Explorer Hayabusa2’s SCI Completes Operation , http://global.jaxa.jp/press/2019/04/20190405b.html (accessed Apr. 5, 2019). 4 Japanese Aerospace Exploration Agency, Hayabusa 2 Project, Mission Schedule https://www.hayabusa2.jaxa.jp/ en/news/schedule/ (accessed Nov. 13, 2022). 5 Japanese Aerospace Exploration Agency, Hayabusa 2 Project, News, https://www.hayabusa2.jaxa.jp/en/ topics/20210602_Nature/ (accessed Nov. 13, 2022). 6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. 1 (Dec. 19, 1966), http://www.unoosa.org/oosa/en/ourwork/spacelaw/ treaties/introouterspacetreaty.html (Outer Space Treaty or OST). ( The Moon Agreement speaks directly to removal of material for scientific purposes. However, the agreement is far less authoritative due to its lack of signatories and ratified states .) The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies art. 6 (1 & 2) (Dec. 5, 1979), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (Moon Agreement). 7 U.S. Govt., U.S. Mil., Dept. of Def., U.S. Interpretation of International Space Policies Regarding Commercial Resource Acquisitions – Evolving Space Laws and Treaties, Legalizing Commercial Space Mining on the Moon and Asteroids, p.3 (Progressive Management 2015). 8 Space mining: black holes await investors , Cal. News Times (Aug. 14, 2021), (https://californianewstimes.com/ space-mining-black-holes-await-investors/482951/). 9 FOUST, J. Asteroid mining company Planetary Resources acquired by blockchain firm, Spacenews , (Oct. 31, 2018) (available at https://spacenews.com/asteroid-mining-company-planetary-resources-acquired-by-blockchain-firm/).

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