Space mining, or space resource activities, is on its way to becoming a reality. There are several companies such as Deep Space Industries and iSpace as well a few others, successfully raising funds, developing new technologies, and planning for the future of the space economy. The legal framework to govern these activities is also under development based on an established governance regime that is now over 50 years old. Therefore, it is worth examining some of the key issues as well as the ongoing developments in space law relating to space resource activities.
Any discussion or enquiry into space law usually begins with the Outer Space Treaty 1967. This treaty has been described as a cornerstone or Magna Carta of outer space. It provides the foundational legal framework upon which the space governance regime has been built. For the purposes of this discussion, the focus will be on Articles I, II and VI of the Outer Space Treaty. There will also be a brief discussion of Article 11 of the Moon Agreement before touching upon the discussions at the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS).
The Outer Space Treaty is the foundational legal framework for space governance. It has been ratified or acceded to by 107 States and signed by a further 23 States. Many of its provisions, Articles I-IV and VI especially, are now considered to be customary international law which generally means that even States not party to the Outer Space Treaty have an obligation to respect or abide by the principles. The Outer Space Treaty was further developed by three subsequent treaties, the Rescue Agreement, the Liability Convention, and the Registration Convention. The Moon Agreement is the 5th of the United Nations space law treaties, but it is largely considered a failed treaty as it has been only ratified or acceded to by 18 States and signed by a further four States. However, it is inaccurate to call it a dead treaty as it continues to pick up new parties, most recently Armenia in January 2018. Additionally, the treaty is in force and is therefore binding upon its parties. It is mainly worth discussing for our purposes due to Article 11, which I will discuss in more detail below.
Articles I and II of the Outer Space Treaty work in conjunction and are the two most important articles, they are what gives space its status as part of the so-called global commons. Article I states that outer space is free for the exploration and use by all States. It doesn’t provide a definition of what constitutes ‘use’, however, a broad interpretation is reasonable and includes allowing space resource activities. Article II is the problematic one for prospective space miners as it stipulates that “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” There are several schools of thought on what exactly this means, especially with regards to space resource activities, but they essentially break down to two main positions. Either there is a ban on any and all appropriation because even physically separated from the asteroid, planet or moon, the resource remains part of a celestial body and therefore not appropriable—legally speaking at least—or it is the case that appropriation of the resource can only happen after it has been extracted, thus becoming legally separate from the body it was removed from. This is essentially the basis upon which both the United States and Luxembourg have based their national space resource activities laws.
Article VI states that States are responsible for the activities of their nationals in outer space. This includes legal persons such as corporations. States are also required to authorize and supervise the activities of their nationals in outer space. States cannot authorize others to do what they themselves are prohibited from doing. For example, if Article II of the Outer Space Treaty means that appropriation of extracted resources is prohibited, then that prohibition would apply to Deep Space Industries as much as the United States government. Furthermore, it is worth noting that the US legislation of 2015 stipulates that the US law will operate in accordance with the international obligations of the United States. Assuming, for argument’s sake, that Article II does constitute a broad prohibition on appropriation including extracted resources, then a US court would be obligated to interpret Title IV of the 2015 law in line with that. Of course there’s potentially an escape clause as that would render Title IV nonsense, which clearly can’t have been Congress’ intention, but that’s a different matter.
Article 11 of the Moon Agreement is controversial largely due to the statement in section 1: “the Moon and its natural resources are the common heritage of mankind.” However, it doesn’t provide any definition of what this means. Article 11, in section 5, goes on to state that States Parties shall “undertake to establish an international regime” for space resource activities when “such exploitation is about to become feasible.” Article 7(d) requires that this regime provide for “an equitable sharing by all States Parties in the benefits derived from those resources…” These provisions doomed the Moon Agreement to the limited uptake it has so far enjoyed. As mentioned, the agreement is a valid treaty and therefore worth bearing in mind, especially as there have been calls for the implementation of Article 11 by the States Parties (although no concrete action has been taken). If, for example, a space power like Russia were to become a party to the Moon Agreement, then it would change the geopolitics considerably.
As for developments internationally, there have been discussions at UNCOPUOS on space resource activities. Despite a few vocal and persistent objections to the approach being undertaken by the United States and Luxembourg, there is growing acceptance of the idea that Articles I and II of the Outer Space Treaty do indeed allow scope for commercial space resource activities albeit subject to restrictions. The key questions now are primarily focused on how to authorize such activity and from where the authority to do so originates: essentially states acting on their own sovereign or unilateral authority, or the international community acting collectively. The discussion at the international level will continue, but the primary driver will be the interested States, and, of course, the industry. Finally, even if space resource activities do represent a new gold rush, space isn’t the Wild West. There is a legal governance regime in place and it is important that it is maintained while recognizing a need for it to evolve.
Title IV of the US Commercial Space Launch Competitiveness Act of 2015
- Subject to the international obligations of the United States:
- US citizens have the right to engage in space resource activities
- US citizens have the right to possess, own, transport, use, and sell asteroid or space resources obtained
- By enacting this Act, the US does not “assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”
Law of 20 July 2017 on the exploration and use of space resources
- Space resources can be appropriated
- Space resource activities require authorization
- Authorization will only be granted to companies registered in Luxembourg and of specific legal types
- Authorization will be subject to checks on things such as to the viability and financial health of operator
- Violations can be punished by terms of imprisonment (8 days – 5 years) and/or fines (1,250 – 1,000,000 euros)
Posted by Thomas Cheney
Chloe Cornish, ‘Interplanetary Players: A Who’s Who of Space Mining’ Financial Times (19 October 2017)
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty)
Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl eds., Cologne Commentary on Space Law, vol 1 (1st edn, Carl Heymanns Verlag, 2009), 14; Francis Lyall and Paul B. Larsen Space Law: A Treatise (Ashgate 2009), 53; I.H.Ph. Diederiks-Verschoor and V. Kopal, An Introduction to Space Law (3rd edn, Kluwer Law International, 2008), 3
Francis Lyall and Paul B. Larsen Space Law: A Treatise (Ashgate 2009), 54, 71; Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997), 206
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (adopted 22 April 1968, entered into force 3 December 1968) 672 UNTS 119 (Rescue Agreement)
International Institute of Space Law (2015) ‘Position Paper on Space Resource Mining‘ Adopted 20 December 2015; Space Generation Advisory Council Space Law and Policy Project Group (2016) ‘Statement on Resource Utilisation in Space‘ Adopted June 2016.
US Commercial Space Launch Competitiveness Act, Public Law 114-90, 114th Congress, 25 November 2015, 51 U.S.C, Title IV