Frontiers of Trade: Space, asteroids & rules of origin 

Welcome to the first of Flint Global’s Frontiers of Trade series. We’re taking the opportunity to look beyond the current issues dominating the current trading environment, well known as tariffs and geopolitical tensions are, to look at what questions businesses will need to be thinking about in the next twenty years. Our first blog questions the role of Rules of Origin on trade in space-derived minerals and resources. 

Picture a platinum ingot sitting on a customs desk. It arrived on Earth in a spacecraft. The vessel that mined it was Japanese-owned, launched on a US rocket, funded by UAE sovereign capital, and the refining happened aboard an orbital platform registered in Luxembourg. The customs officer picks up the ingot and asks one of the only questions that matters: where is this from? 

Nobody knows. Not because the paperwork is missing. Because the legal answers do not yet exist. 

This is not science fiction. The world’s largest IPO is predicated on the extraterrestrial extraction of the solar system’s resources. Asteroid mining companies are conducting active testing and targeting a near-Earth asteroid for commercial extraction. The platinum metals market, worth hundreds of billions dollars annually, could face its first extraterrestrial competitor within a decade. When that ingot arrives at a real port, the customs authorities will need an answer. Trade policy does not currently have one. 

Trade law was built by, and for, countries 

Rules of origin are the mechanism that gives traded goods an economic nationality. They determine which tariff rate applies, whether sanctions bite, and whether anti-dumping duties are owed – all answering the question of where a good comes from. However, space has no countries. 

The two core tests that underpin all rules of origin cannot be satisfied. The wholly obtained criterion assigns origin to goods extracted from a country's subsoil. An asteroid is nobody's subsoil according to Article II of the Outer Space Treaty which explicitly prohibits national appropriation of celestial bodies. The substantial transformation criterion assigns origin to wherever the last significant processing occurred. Orbital processing has no jurisdictional home. No state can claim the transformation happened "in" its territory. 

One government has already given this some thought. US customs regulations¹ include a clause for goods "taken from outer space" by a US national. However, this doesn’t particularly help if more than one nationality is involved, which, in any commercially realistic extraction mission, will likely be the case. 

We’ve seen this problem before 

In the 1970s, the world faced a similar challenge. Polymetallic nodules, valuable mineral deposits sitting on the deep ocean floor, lay in a zone that international law declared beyond national sovereignty. Nobody owned the seabed. Yet extracting those nodules raised the question of what legal rules governed that activity, and who the resources belonged to. 

The response was the International Seabed Authority (ISA), created under the UN Convention on the Law of the Sea. Under the ISA's "sponsoring state" model, a private operator must be sponsored by a state party, which assumes international responsibility for that operator's activities. The extracted resources are attributed to the sponsoring state. One responsible state, regardless of who owns the company, who financed the mission, or where the equipment came from. This approach was subsequently strengthened by a binding ITLOS Advisory Opinion in 2011.  

This may provide a useful precedent for asteroid mining. For example, under the EU’s free trade agreements, fish caught outside of territorial water only qualify for preferential tariff treatment if either the vessel that caught them is: 

1. Registered in an EU member state or the FTA partner; 

2. Sails under the flag of an EU member state or FTA partner; and 

3. Meets one of the following conditions: 

1. Is at least 50% owned by nationals of a member state or the FTA partner; or 

2. Is owned by legal persons that  have their head office and main place of business in the EU or the FTA partner; and are at least 50% owned by public entities, nationals or legal persons of a member state or the FTA partners 

However, the ISA's original financial architecture, production limits, mandatory technology transfer to developing states, and enterprise participation rights, has been considered disproportionately burdensome for the commercialisation of deep-sea mining.  

Space, trade and governance  

Governance discussions around space resources tend to focus on property rights and planetary sovereignty. The trade law dimension is an underdeveloped consideration as the rules of origin example demonstrates.  

• The first is services. Regulatory regimes governing internationally traded services assume that activities can be assigned to a territory. Space mining could upend that assumption. A data centre aboard an orbital platform, crew operations conducted from mission control in three jurisdictions simultaneously, transaction processing on a registered vessel from yet another jurisdiction. None of these fit cleanly into frameworks built for terrestrial addresses. Data adequacy rules, financial services licensing, and export control regimes all depend on the ability to classify where an activity takes place. Whether a data centre in orbit is considered part of the state that owns it, or outside any jurisdiction entirely, is not a question current trade frameworks answer. The same gap runs through customs, sanctions, and trade in services disciplines alike: they presuppose a jurisdiction, and space does not provide one. 

• The second is  litigation risk. Before any multilateral framework is agreed, an operator will return extracted material to Earth, declare an origin at customs, and someone could challenge the declaration. That case, whether before  a US Court of International Trade, a WTO panel, or an FTA tribunal, will set precedent by default. It will be the first to establish the rules that governments failed to write in advance.  

• The third is the geopolitics of terrestrial mining where critical minerals sit at the centre of many of today’s largest trade challenges. South Africa produces approximately 70% of global platinum. The DRC dominates cobalt. China controls rare earth processing. Each of these states has strong incentives to deploy trade remedies or other measures against space-derived materials the moment they threaten market share. Doing so would require origin attribution. The absence of origin rules will not protect space miners from trade remedies and sanctions; it would make the legal fights messier and less predictable. 

What’s the solution? 

Given the current state of the world, we are  unlikely to see countries to agree to a new treaty. However, there are options available to countries and companies willing to think ahead. 

1. First, aligned customs authorities should act now. The UK, EU, US and other aligned customs authorities should issue advance ruling guidance on how they intend to treat space-derived minerals at the border. The most defensible default, assign origin to the state that authorised and supervises the extraction activity under Article VI of the Outer Space Treaty, requires no legislation only a decision. 

2. Second, the Artemis Accords coalition should negotiate an Origin Protocol. The 61 signatories already have a functioning political coalition and a shared governance philosophy. An annex establishing a default origin rule and a voluntary credential registry for materials with no market comparator is achievable within that framework.  

3. Third, the World Customs Organization needs a new Harmonised System classification and should agree on a customs valuation methodology for space-derived minerals and resources. Space-derived platinum is chemically identical to terrestrial platinum. That does not make it legally identical, and the tariff classification should reflect the difference. A new HS sub-heading, proposed under Chapter 26 (ores, slag, and ash) or through a dedicated Chapter 99 provision, would enable consistent classification across customs territories, trigger the right due diligence frameworks, and give downstream buyers in defence, advanced manufacturing and semiconductor supply chains the provenance documentation they will require. 

Back to the ports 

The ingot is still on the desk. Governments that move first to answer the customs question will likely write the rules that everyone else inherits. And companies that assume they'll be able to operate outside the scope of terrestrial rules and regulations in space are in for an unpleasant surprise.  

The window is open. It will not stay open for long. 

Flint's Trade team helps businesses navigate the intersection of trade policy, geopolitics and regulation. From tariffs and supply chains to emerging trade frameworks and market access, we provide strategic advice on the policy developments shaping international commerce.

Sam Lowe is a Partner leading Flint's global Trade and Market Access practice. George Riddell is a Senior Advisor specialised in supporting clients in international trade, sustainable supply chains and geopolitical fragmentation.

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