There is renewed interest nowadays in space mining. There was similar interest in space mining during the Cold War, when international agreements were developed to address the possibility. To this day, though, there is no clear and universally accepted legal framework that governs space mining. Efforts are underway to fill this legal gap. We spoke to Steven Freeland, a professor of international law at Western Sydney University, Australia, to learn about international laws regarding space resources. He is co-moderating UN discussions on space resource utilization. He shares his thoughts on the past, current, and future legal context of space mining.
How do existing laws hinder or facilitate space resource utilization?
The exploration and use of outer space is regulated at the international level through a series of five United Nations Treaties. The first of these is the framework instrument of 1967 known as The Outer Space Treaty. It set out the fundamental principles that govern all space activities. Although no express reference is made in that instrument to space resource utilization, Article 2 encompasses the so-called “non-appropriation” principle, which is regarded as one of the most fundamental rules regulating outer space. In general terms, it confirms that outer space (which includes the Moon and other celestial bodies) is not to be subject to ownership rights. It furthermore prohibits any sovereign or territorial claims to outer space. This confirms that space is not to be regarded as “territorial”, a principle that, by the time the Outer Space Treaty was concluded, was already well accepted in practice.
In 1979, after years of discussion and as a reflection of excitement at the time about the possibility of mining lunar resources, the fifth of the United Nations Treaties, known as The Moon Agreement, was created. It indicated a cooperative approach to any future possible exploitation of space resources. The Moon Agreement contains a number of interesting and potentially significant principles – notably the concept of intergenerational equity in Article 4. It also reinforces the non-appropriation principle.
The Moon Agreement’s principal raison-d’être is the formalization of the terms of a legal regime that would ultimately apply to the exploitation of the natural resources of the Moon and other celestial bodies. The treaty introduced a political concept for the resources of these celestial bodies – the “common heritage of (hu)mankind”. This concept is also used, albeit in a different context and most likely with a different meaning, in the international treaty that deals with the possible exploitation of the natural resources of the deep-sea bed under the high seas on Earth. The Moon Agreement established the legal conditions for the exploitation of space natural resources. These include the condition that any international regime is to be established by the parties to the treaty when such exploitation “is about to become feasible”.
However, for many political and other reasons, the Moon Agreement has not been ratified by any of the major spacefaring countries. There is no such regime in place. Indeed, at present there is much debate as to the correct legal position regarding well-publicized plans by various private entities to pursue future space resource utilization activities. There are therefore many calls for greater clarity, based on international agreement, as to the applicable legal principles.
What are some ongoing developments to space law that may pave the way for space resource utilization?
The possibility of commercial space resource utilization has again become a high-profile issue in recent years. The United States (2015) and Luxembourg (2017) – with others possibly to follow – have enacted national legislation to this end. The legislation purports to promote space resource utilization activities by private entities while still recognizing the applicability of the international legal obligations. This highlights the desirability of multilateral discussions to determine whether and, if so, how to proceed. The issue of the “exploration, exploitation, and utilization of space resources” has been an agenda item at the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) since 2016. This has already raised a broad range of complicated issues relating to the interpretation of applicable international space law.
In June 2019, UN COPUOS resolved to schedule consultations among all 95 member states for “a broad and inclusive exchange of views on the future deliberations concerning the exploration, exploitation, and utilization of space resources”. Those discussions are to commence in March 2020. I am honored to have been appointed by UN COPUOS as a co-Moderator of those discussions. These discussions are intended to enable every state to express its views, and through them to also take into account the views of civil society and industry.
In the meantime, academics, industry, and other groups have been examining various legal aspects associated with the issue of space resource utilization. These include the work of The Hague International Space Resources Governance Working Group, which recently circulated its “Building Blocks” publication. University academics have furthermore published in various journals and books on this issue. These reflect a variety of differing viewpoints, which further emphasizes the imperative to reach a widely accepted international consensus as to the way forward.
What advice do you have for people who would like to advance space resource utilization?
From the time of the launch of Sputnik 1 in 1957, space has been widely regarded as a “commons” for all humanity. This is reflected in The Outer Space Treaty, which was designed to provide principles to govern space in the geopolitical environment of the Cold War. At that time, the main space actors were countries, not private corporations.
Since those days, the nature of space activities has undergone a significant shift. Commercial interests are now a major element in the future of space exploration and use. And where there are commercial interests at stake, the financial “bottom line” becomes all-important. A number of private entities believe there are considerable profits to be made in the rare metals and other valuable resources lying untouched in the Moon and near-Earth asteroids.
In addition to the legal framework regarding such space activities, various “non-legal” issues are relevant – who bears the costs of future space exploration, exploitation, and utilization, and who has the right to profit from it? In addition, one critical area is being overlooked. Asteroids might be “out of sight, out of mind” for the most part, but lunar mining is likely to arouse strong and widespread reaction. The Moon is one of the most significant cultural influences that unites people across all times and places in human history. Would the public, for example, support commercial space mining if excavation scars were visible through Earth-based telescopes?
In moving forward, we also need to carefully consider how to avoid a “tragedy of the commons” scenario in relation to space resources. We must do the same regarding the challenges associated with increasing space debris. What is really at stake is the future of universal human access to space and the very way we view space. A rash move at this point could tip the balance and erode the foundational space law principles as applied to space resources. We must avoid further entrenching the divisions between the space haves and have-nots.
While there may be considerable benefits for future generations should we find a way to safely and sustainably exploit space resources, there are also considerable risks. This requires careful calibration and cool heads. The key will be international cooperation on a broad scale. This issue is too important and too complex to be undertaken by a small number of private enterprises or countries. A clear international consensus-based understanding must be reached that safeguards the interests of every stakeholder. With careful thought and close cooperation befitting such a significant activity as space resource exploitation, there is a real possibility that the many complexities can ultimately be addressed and resolved.