by Alexia Armstrong
A – Introduction to Space Mining and its Major Considerations
Outer space is rife with resources that can be useful to human development. Celestial bodies (any natural object outside of Earth’s atmosphere, such as asteroids or planets) are therefore being explored for their resource extraction potential. Significant costs are and will continue to be required for the prospecting and mining of celestial bodies, but many governments and non-state actors are willing to invest in this potential new mining sector. This paper will explore the legal landscape that allows for space mining, and will then highlight important considerations that need to be implemented at the early stages of the growth of this industry to ensure long-term equity and sustainability. Before that, however, it is first important for context to understand the current viability of space mining, notably in terms of technology, economics and law.
The first consideration is technological viability; whether space mining is even logistically possible. Since the 1969 Apollo 11 mission carried back 21.6kg of geological samples from the moon, humans have been successfully bringing celestial bodies to Earth.1 Japan’s Hayabusa spacecraft was the first to successfully take samples from an asteroid and return them to Earth in 2010.2 Logistically and technologically, therefore, bringing samples of celestial bodies to Earth is possible. For space mining to be commercially viable, however, technology will have to advance so that more than just a few kilograms of the resource can be returned to Earth.
This leads to the second consideration: economic viability. This all comes down to expected return on investment, or how much net income is expected compared to money invested. In September 2023, NASA concluded its 7-year Osiris-Rex mission, bringing back to Earth a capsule containing 249.5 grams of an asteroid sample from the asteroid Bennu.3 The mission cost US$1.16 billion, or US$4.65 million per gram of the sample.4 At time of writing, 1 gram of platinum is valued at US$29.26 and 1 gram of gold is US$70.03.5 Even in the hypothetical event that the Bennu sample is pure gold, its current market value would only be US$17,472, a fraction of the mission cost, making no economic sense in terms of return on investment. Space mining today is therefore clearly not economically sustainable.
That said, space activities have gotten cheaper throughout the last few decades as technology has met with scientific advancement, opening up the space sector to many more countries, regional organisations, and private companies.6 For example, private company SpaceX has started developing fully reusable spacecraft and boosters, which could save hundreds of millions of dollars per launch.7 Space mining is not economically viable today, however with the quickly advancing technology in the field as well as the growing competition, the economic viability of the industry could change drastically in the near future.
As new stakeholders enter the industry, the question of overflooding within the market will become ever present: how will supply and demand affect the value of resources brought back to Earth? For example, in discussing the economic viability of bringing outer-space platinum back to Earth, authors of a Market Research Report on space mining warn that “introducing large amounts of platinum on the market would impact its own profitability.”8 Abundance of a resource would make its value drop. However, this economic concern is premature. The current global supply of platinum is around 165 tonnes.9 The heaviest celestial body sample returned to earth weighed 110.5kg.10 The space industry is far from having to worry about flooding any markets and decreasing the value of resources.
Finally in terms of economics, there is a major argument for space mining on the basis of Earth’s rapid depletion of vital resources.11 In the same way humanity has been warned that our planet will run out of fossil fuels, there is valid concern that the surge in demand for critical minerals, particularly due to the green transition, could similarly exhaust these key resources. Scarcity of resources will dramatically increase prices, so that return on investment for space mining might start to make sense. Ricky Lee writes that “the worsening scarcity of mineral resources from Earth’s crust means that the future extraction and exploitation of mineral resources on celestial bodies is a mere questions of when.”12 A recent scientific study looking at demand for critical minerals within the green transition indicates otherwise, however: “Current global reserves of critical materials are likely adequate, as future demand from electricity generation infrastructure does not exceed existing resources over the next 30 years.”13 In conclusion, I think the more robust economic argument is that the space mining industry will take off not out of necessity, but in time, out of increasingly attractive potential returns on investment.
Understanding the technological, logistical and economic viability of space mining provides key context to understanding the current reality of the emerging industry. The final major consideration for space mining is the legal context, which will be the main focus of this paper. First, we will discuss key international space law provisions that relate to resource activities, second, compare State laws and policies that address commercialisation of space resources, and finally, propose solutions to bring global, intergenerational equity to the forefront of this budding industry.
B – International Governance of Space Mining
The foundations of the international legal framework governing space were created during a time of war. All five of the major space law treaties were signed and adopted during the height of the Cold War, when there were only two major actors in space: the United States and the Soviet Union. As a result, important provisions were left “vague and ambiguous” to appease the interests of both States.14 Today, however, the space industry has evolved far beyond a military competition into a multinational commercial environment. None of the treaties set out an explicit framework for space resource extraction, though the Moon Agreement does suggest that an international regime be created as such exploitation is “about to become feasible.”15 In practice, however, the Moon Agreement carries little value in international law, as it has only 17 signatory parties, none of which are major space-faring nations.16 This section will therefore focus on evaluating the Outer Space Treaty as the main international source of space law, and then look at international space governance outside of the global institutional framework, notably through the Artemis Accords.
Outer Space Treaty
The OST, adopted in 1967, is the magna carta of space law. It has 114 State Parties, including all major space-faring nations. There has been significant legal discourse on whether the OST allows space mining, revolving mostly on the treaty’s first two articles. The OST forbids national appropriation of outer space, the Moon and celestial bodies (Article II), but also promotes their “exploration and use” (Article I). Herein lies the ambiguity that has led to two interpretations of the Treaty’s stance on space mining.
Camp 1: Space Mining Prohibited
Space mining inherently requires some degree of exclusionary right for a commercial miner to feel that their mining investment is protected. Ricky Lee argues that because of this, “mineral extraction activities on celestial bodies [are] difficult, if not impossible, to justify in law,” as they breach the principles of freedom of access and non-appropriation found in OST Articles I and II.17 The former principle is more straightforward; because space mining requires the exclusion of others without use, De Man explains that the exclusionary right to space mining goes against the freedom of access principle and therefore cannot be condoned.18 A mining zone naturally prevents use and access by others. This breach of the OST is undisputed.
On the principle of non-appropriation, Gorove argues that “reasonable interpretation” of the OST would show that the prohibition on appropriation covers “acquisition of a part of the moon or other celestial body.”19 Writing in 1969, Gorove offers no judgement of the merits of such a prohibition, but interprets the OST as forbidding space mining. Writing in 2016, De Man takes a more nuanced approach, differentiating between use and commercialisation of resources. He writes: “A strict application of the non-appropriation provision in the outer space treaties hence requires that natural resources from celestial bodies be actually used rather than commercialized on the basis of property rights after removal.”20 At this stage, it is important to make a key distinction within the concept of space resource extraction. This paper centres on space mining in terms of extracting resources from celestial bodies, potentially to be brought back to Earth, for commercial purposes. Another key term is “in-situ resource utilisation” (ISRU), which NASA describes as the “harnessing of local natural resources at mission destinations, instead of taking all needed supplies from Earth, to enhance the capabilities of human exploration.”21 Many authors see the OST as forbidding commercial resource extraction, but few see a legal opposition to ISRU.
Camp 2: Space Mining Allowed
Most contemporary scholars, however, see the OST in favour of space mining. Hobe writes that a “prudent interpretation” of Article II would hold that appropriation of territory and claims of sovereignty are prohibited, “whereas the commercial use and thus also mining on celestial bodies…, is not explicitly prohibited.”22 He explicitly writes: “according to the [OST] mining in space is allowed.”23 Another argument in favour of space mining is that since the OST explicitly states what is forbidden (notably, using space for military purposes), and stays silent on resource extraction, then there is no OST prohibition on space mining.24 Coffey suggests that this silence is intentional, while Koch, on the other hand, sees it as a failure to anticipate privatisation trends.25 Either way, the argument further confirms that Article II does not proscribe space mining.
While the discourse on the OST tends to centre on Articles I and II, Article IX is also one worth mentioning. This provision goes beyond asserting the right to use, to set out obligations on those benefiting from this right. Among these obligations lies the duty of due regard to the corresponding interests of other states as well as to avoid harmful contamination of outer space, the Moon and other celestial bodies.26 This duty of due regard is key to ensuring other actors’ freedom of use of outer space.
The International Institute of Space Law (IISL) published a study concluding that as long as space mining is conducted for the benefit of all mankind, and in conformity with provisions on military use and environmental considerations, then it is allowed by the OST.27 This paper will therefore proceed on the basis that commercial space mining is permissible under space law, and will further evaluate what “benefit of mankind” entails in section D.
Application of the Space Treaties & Shift Away from Institutions
At the time the space treaties were adopted, major space players were all States. Treaties nevertheless pre-empted the rise of non-governmental space actors and made provisions to clarify responsibility. Notably, the OST states that countries bear “international responsibility for national activities in outer space… whether such activities are carried on by governmental agencies or by non-governmental entities.”28 Private actors require authorisation and continuing supervision by the appropriate State Party to the Treaty. The Liability Convention of 1972 further clarified this responsibility, asserting that States are ultimately responsible for the actions of private space actors under their authority and/or launching from their territory of facility.29 Professor Michelle Hanlon summarises this simply: “the Treaty does reach private, non-State activity.”30
While the treaties apply to both state and non-state space actors, it is significant that a new treaty has not been adopted in decades. This can be attributed in part to a move away from international law and norm-building through formal institutions. Dr Christopher Newman, a professor of Space Law, describes a “shift”: “A fundamental shift in international relations has occurred since the end of the cold war, and the time of developing international treaties as instruments of space regulation appears to be at an end. In this new era of space exploration, a hybrid mixture of law agreements and codes of practice work synchronously to serve as alternatives to binding treaties to manage the regulation of space.”31 Newman is not the only one to believe in this shift. Listner similarly writes “The time of treaties, international institutions, and other top-down mechanisms to create norms to address outer space issues and security has passed.”32 He suggests that instead, domestic practices of state actors will influence other state accords, which will establish new practice norms at the international level. This would apply to real space property and resource rights.33
An alternative view marries traditional norm-building through institutions with the method suggested by Listner. In writing about the importance of the notion of “global commons,” Dr Kai-Uwe Schrogl argues that sustainability of resource exploitation must be “accomplished through multilateral mechanisms and, ultimately, binding universal arrangements.”34 In 2020, such a multilateral mechanism did emerge, as eight States came together to sign the Artemis Accords. Nevertheless, Dr. Schrogl denounced the Accords as undemocratic, as they emerged from high-level political dialogue rather than an international working paper.35 He is not alone in denouncing the Accords, as many (particularly Russia and China) see them as too US-centric. While it is accurate that the Accords were launched by former-US President Trump, they were adopted multilaterally from the start, have since been signed by 39 States, and though not currently binding, could, with time, establish international norms, or even as Anderson et al. suggest, form the foundation for a global treaty.36 The next subsection will delve into the Accords more deeply.
Artemis Accords
The Artemis Accords are a series of agreements spearheaded by the US and first signed on October 13th 2020 by Australia, Canada, Italy, Japan, Luxembourg, the UAE, the UK, and the US. The Accords describe and reaffirm certain principles iterated in the space treaties and concretise certain developed norms, including peaceful exploration, transparency, interoperability, emergency assistance, registration of space objects, release of scientific data, preserving heritage, extraction of space resources in compliance with the OST, deconfliction of activities and reducing orbital debris.37 As of April 2024, 39 countries have signed the Accords, though two major space-faring nations (China and Russia) are not among them.38
Section 10 directly addresses space resources; s. 10(2) notes that “extraction and utilization of space resources” is not considered national appropriation, and therefore is not contrary to the OST. This presents a legal framework favourable of space mining. That said, Section 10(1) could suggest that this non-appropriative utilization only applies to extraction for the purpose of providing critical support for space operations (i.e. ISRU). Nevertheless, the wording of the entirety of Section 10 can be read as in support of resource extraction, both for ISRU (as explicitly stated in section 10(1)), but also for commercial space mining perhaps to be called “ex situ,” based on the notable lack of prohibition against it. Unlike the OST which has different interpretations, the Artemis Accords unambiguously allow commercial space mining.
A recent trend in space law has been the adoption of national laws in favour of space mining. Four of the Artemis Accords’ signatories have adopted such laws. The following section will delve into existing domestic laws as they provide an important indication of legal justifications as well as aspirations for developing a space mining industry.
C – Domestic Laws & Policies on Space Mining
United States
The United States was the first country to adopt a domestic space resources law. In 2015, the US enacted its Commercial Space Launch Competitiveness Act, which states: “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.” 39 It usefully defines the term “space resource” as an “abiotic resource in situ in outer space.”40 The Act also asserts that the US does not assert sovereignty over any celestial body, affirming OST Article II. These provisions influenced later domestic laws adopted by other countries.
The 2015 Act kickstarted a domestic space mining legal framework in the US, but there have been many developments since. These include President Trump’s 2020 Executive Order encouraging international support for the use of space resources, and the Artemis Accords discussed above, for example. 41 In addition, two bills are currently being considered by the 118th Congress. The first, the Space Resources Institute Act, was introduced in June 2023 with the ultimate goal of creating a space resources institute to “maintain United States pre-eminence in space.”42 The second, the Commercial Space Act of 2023 introduced in November, is widely supported by private space companies, and proposes to modernise government oversight of commercial space activities.43 The US continues to position itself to be a leader in the creation of a robust space mining industry.
Luxembourg
Luxembourg was the second country to secure property rights for space resources.44 In 2017, the Parliament adopted the Law on exploration and use of space resources. The law begins simply: “Space resources are capable of being owned.”45 It goes on to detail the mission authorisation process for any person wishing to explore or use space resources, and channels liability to space mission operators.46 In 2018, the Economy Minister founded the Luxembourg Space Agency (LSA), with an explicit mission not of scientific exploration, but commercial development. The LSA asserts that the right to ownership over space resources created by the 2017 law is in accordance with international law, in particular the OST.47 This is because of the key distinction made by Luxembourg between “the appropriation of a celestial body and the appropriation of the material of which it is composed.”48
Most of Luxembourg’s recent projects have involved developing ISRU, notably in partnership with the European Space Agency. Long term though, the LSA’s plan involves not just ISRU, but also potentially bringing what are currently called Rare-Earth Elements from celestial bodies to our planet.49 Space mining is clearly a priority for Luxembourg; the 2017 law, partnerships to develop ISRU, and statements about potential future commercial mining all clearly indicate this.
United Arab Emirates
The United Arab Emirates established the Emirates Space Agency (UAESA) in 2014. In 2019, the UAESA decreed Federal Law No. 12 on the Regulation of the Space Sector, including provisions dealing with extraction, exploitation and utilisation of space resources. The Law includes important definitions that align with those of the US, requires permits for those wishing to engage in space activities, and like the Luxembourg space resource law, places liability on space operators.50 In 2023, the UAESA published a Space Resources Resolution, establishing clearer provisions for operators wishing to carry out space resource activities.51 The UAE has established a legal framework extremely favourable to commercial space mining. In practice, UAESA has announced plans to venture towards several asteroids in the coming years, with the overriding goal of creating “viable and rewarding employment opportunities.”52 While these missions for now are driven by scientific objectives, technology used for the study of asteroids can quickly become useful for resource prospecting.
Japan
The laws enacted by Japan related to space mining developed very linearly.53 In 2008, Japan enacted the Basic Space Law which recognised the growth of space activities (particularly by non-state actors), and tasked the Japanese State to promote space development and use.54 In 2016, it enacted the Act on Launching of Spacecraft, etc., which set out a legal framework to “ensure the accurate and smooth implementation of conventions concerning the development and use of outer space.”55 The 2016 Act also established that any person who intends to implement control of a spacecraft registered to Japan must seek a license from the Prime Minister.56 This licensing system plays a key role in the Space Resources Act passed in 2021 by the Japanese Diet, as the license is a requirement that allows the licensee to acquire ownership of space resources.57
In November 2022, the first licence was granted to the company ispace, inc. for their lunar landing mission.58 Their business plan involved extracting resources and then transferring ownership to NASA (the two parties had a contract for the acquisition of lunar regolith). Japan’s Minister of State for Space Policy stated that if successful, this would be a “groundbreaking first step toward the establishment of commercial space exploration by private operators.”59 Ispace’s first mission was unsuccessful, however, so the resilience of Japanese (and US) space laws’ resource ownership provisions was not put to the test.
Other Countries’ Policies
Beyond the four States that have adopted domestic space resource laws, a few others have demonstrated interest in space mining. India, for example, has one of the world’s preeminent space programmes, and in 2023 approved the Indian Space Policy which opens up the space sector for participation by non-governmental entities, including for the “commercial recovery of an asteroid resource or a space resource.”60 The Canadian Space Agency, for another, has not adopted any laws or policies, but has supported companies’ research into ISRU.61
Several countries, on the other hand, have shown strong disapproval for these national laws and policies, particularly given the lack of a robust international legal framework. Notably, Russia outright opposes the adoption of national space mining laws as it considers the UN capable of handling space issues.62 The Director of Roscosmos called for a “system of regulations” to address space mining activities at an international level.63 This aligns with the Russian Constitution of 1993, which emphasises the primacy of international law over national law.64 Iran, for another, points to the Artemis Accords and warns that “Any activity by all states individually or as a club of countries outside of the United Nations framework should be avoided.” Iran also urged UNCOPUOS to define a legal framework with the rights of low-income countries in mind.65
Fitting into neither category, China as one of the world’s great space powers has neither publicly disapproved of domestic space mining laws, nor developed comprehensive national space laws or regulations. China has not joined the Artemis Accords, choosing instead to collaborate with Russia on the International Lunar Research Station (ILRS). China has also issued several White Papers, 5-year plans and policy documents that demonstrate its ambitions in space.66 That said, such ambitions have been presented as merely for scientific purposes. Notably, China continues to affirm its commitment to the OST, and upholds that space resource activities must be conducted sustainably, to ensure freedom of exploration and use for all with the aim of intergenerational equity.67 Section D will address this perspective in depth.
Primacy of Law & Need for International Collaboration
Looking at international sources of space law as well as domestic legal regimes leads to a question of primacy of law. International law, through the “Vienna Convention on the Law of Treaties”, states that “provisions of state internal law may never be invoked by a party of a treaty ‘as justification for its failure to perform a treaty.’”68 In fact, the domestic laws on space resources of all four countries discussed earlier assert a commitment to sincere implementation of international obligations.69 That said, as stated by the authors of the IISL study, “an intention or opinion enshrined by national law to not violate international law does not affect whether that national law is actually violating international law.”70 The OST prohibits claiming sovereignty over or appropriating celestial bodies, but the lack of explicit clarity on who can own space resources left a legal vacuum that these nations have decided to expressly fill. Domestic space laws that have emerged therefore allow property claims in space, but only over resources that have been extracted, so as to not go against the proscription of the OST. Perhaps that is because for now, that leaves sufficient leeway for those States to conduct the activities (such as mining) they want to pursue. The primacy of international law might be more threatened when those States’ activities start to infringe on the prohibition against appropriation.
One alternative argument is worth mentioning on the note of States vowing to not breach the OST: the distinction between space mining and appropriation might not be as clear as the national laws seem to make it. Jonathan Steele argues that asteroid mining could change the entire nature of a celestial body. He writes: “removing all the valuable minerals from an asteroid might well consume that body totally;” and concludes that asteroid mining might therefore breach the OST’s non-appropriation principle.71 Regardless of this sovereignty argument however, it is clear that total destruction would go against other key OST principles of freedom of use and due regard. Furthermore, there are several solutions to this potential conflict between space mining and international space law. First, more drastically, states might withdraw from the OST. However, provisions of the OST have now become customary international law applying to all states, signatory or not of the OST, so this might not be effective.72 Second, policies could be adopted to conduct space mining in accordance with the OST; for example, regulating asteroids to be above a certain diameter in order to be mined.73 This could prevent total destruction of a celestial body.
Where a legal vacuum exists, actors will fill it to fit their interests (within the limits of their obligations). This is clear from the emergence of domestic space laws and policies, as well as agreements such as the Artemis Accords and ILRS. While I believe these organic regulations are still better than a vacuum, there is cause for concern that norms surrounding space resource activities are being set only by wealthy, space-faring actors. The space treaties clearly still reign, but the widespread call for a UN-led, collaboratively-crafted international convention that better suits today’s space industry should be headed in order to promote an equitable access to and use of outer space.
D – Threat of an unrestricted embrace of space mining
The States planning space mining missions today are rich states. There are, however, many poorer states, some which are developing space programmes, that do not currently benefit from the same access to space or its resources. This section aims to look at key space law provisions that condone more equal access and to propose solutions for equity and common benefit in space mining.
Common Benefit Principle
OST art. I establishes what is known as the “common benefit principle.” There are two major perspectives on the common benefit principle. Lee believes in the first, which claims that the principle creates a specific and positive obligation that is binding on all State Parties.74 Such a narrow interpretation can lead to the conclusion that all benefits from use of space should be shared equitably. The second perspective claims that the principle simply serves to express a desire that activities should be beneficial in a general sense.75 Put another way, that the principle bars uses of space that could be detrimental to the activities of others, without imposing a positive obligation to directly share benefits. As a result, benefit-sharing from outer space activities depends purely on the free will of space actors, which, as we will see, is a significant hurdle to equity.
Domestic space laws have attracted critique from UNCOPUOS and legal scholars for their failure to incorporate the common benefit principle. Svec writes that “none of the already adopted national space mining laws implements the requirement that the use of outer space shall be carried out for the benefit and in the interest of all countries.”76 To counterargue this point, however, it is important to see domestic space laws as additional to existing international space law. Since all four countries with domestic laws are also signatories to the OST, I find this critique lacking. Suffice it to return to the earlier point that all those national laws affirm commitment to the OST to find that the common benefit principle need not be explicitly stated for it to still apply to those governed by such laws. The failure to uphold the common benefit principle therefore lies not in the lacunas of domestic laws, but rather, larger problems on cooperation between space-faring and non-space-faring nations.
In 1991, several lower-income countries submitted a Working Paper to attempt to clarify the purpose of the benefit principle of OST Article I.77 They write that “the exploration and utilization of outer space should be carried out for the benefit and in the interests of all States, taking into particular account the needs of developing countries.”78 Moreover, all states should have access to knowledge derived from exploration through international cooperation mechanisms, and any cooperation between two States must be extended to other countries.79 The ideas of this working paper have unfortunately not been put into practice. Jakhu et al. argue that the common benefit principle has not been implemented by states “due to the Westphalian model of international law, which stresses upon the sovereignty and exclusive interests of the State over others.”80 They write that the “effectuation of the ‘common benefit’ principle can only materialize through cooperation amongst spacefaring and non-spacefaring nations,”81 which is what the States who authored the working paper were calling for. International regulation crafted jointly by all states, spacefaring or not, high or low income, is the only way to ensure common benefit becomes a concrete obligation.
Common Heritage Principle
Distinct from the Common Benefit principle of the OST, but also relevant, is the “common heritage of mankind” (CHM) principle, which originates from the law of the sea. The CHM principle was transported from sea to space through the Moon Agreement, which recognises space resources as the “common heritage of mankind,”82 and mandates the “equitable sharing by all States Parties in the benefits derived from those resources.”83 Hanlon suggests that the failure of the OST to include the common heritage nomenclature is “deeply significant.”84 More restrictive than common benefit, it aligns more closely with the first interpretation of the common benefit principle discussed above, as it places a positive obligation to share benefits. That said, some authors argue that because of the “failed” nature of the Moon Agreement from which CHM stems, “common heritage” should be reserved for non-dispositive discourse, just as interesting context.85 Furthermore, the widespread adoption of the OST and opposite for the Moon Agreement leads one to believe that the OST’s common benefit principle should be read less restrictively; if common benefit were to be read as common heritage, there would likely be significantly fewer ratifications of the OST.
Frontierism & Unequal Access to Space
The common benefit principle is currently being interpreted by space actors broadly, as a restrictive covenant to not cause detriment to the activities of others in space, instead of as a positive obligation to share benefits. Some authors claim this lack of benefit-sharing is actually a threat to the common benefit principle.86 Jakhu et al. write: “In our view space resource extraction carried out unilaterally or for the benefit of a few States with disregard for participation from and sharing of the benefits with all States, is contrary to the ‘common benefit’ principle.”87 The following section will dig further into this perceived threat, and how space actors’ failure to interpret the common benefit principle as a positive obligation threatens equal access to key resources and sources of profit, perpetuating inequity on Earth.
Humans will always seek opportunities in new places. Throughout history, however, this has led to the decimation of populations and ecosystems. Colonial practices include extractivism – a term at the crossroads of resource extraction and capitalism.88 Transcending the more traditionalist view of colonialism as political domination and settlement, colonialism must also be understood to include economic exploitation of new “land” in a new frontier.89 Klinger defines the term “frontiers” as “more or less vaguely specified zones over which multiple actors and institutions compete for control, both over the place and over the extraction of its strategically valued rare earths.”90 Based on Klinger’s definition, there is no doubt that outer space can be considered a frontier. Frontierism in space, however, is not completely analogous to early American Frontierism or empirical colonialism. Kuan-Wei Chen asserts that “space is not the Wild West.”91 Laws exist to govern space, and it is up to academics and governments to emphasise that space is not a legal vacuum.92 What parts of these laws promote equal access to space to prevent a colonialist commercial land-rush?
Colonialism thrived on the doctrine of terra nullius: a land that was not subject to any sovereignty claims, and therefore in principle susceptible to appropriation.93 In space, however, OST art. II “prohibits the conception of space as a res nullius or a terra nullius.”94 Space is instead a res extra commercium, a thing outside of commerce, insusceptible of being traded.95 Hertzfeld et al. claim that this doctrine is what prevents a colonial space land-rush, by holding that certain things may not be the object of private rights.96 Res extra commercium conciliates the non-appropriation principle stipulated by OST Article II with the freedom of use stipulated by Article I, positing that space resources are “not subject to national appropriation, but open to use by all.”97 Read literally, therefore, this would lead to the conclusion that ISRU is admissible to all, and that resource extraction for commercial purpose is forbidden. This interpretation would highlight the challenge to equitable access to space resources.
A non-space-faring actor may wish to benefit from space resources. For example, they may wish to gain access to a space resource for scientific investigation, but the barrier to reaching outer space is too great. As international space law is currently laid out, this actor would not be able to purchase the space resource from a space-faring nation, as that nation would not be able to appropriate the resource to then sell it to the Earth-bound actor. If space law only allows ISRU, and not general commercial extraction, equal access and freedom of use for all of OST art. I is paradoxical.
Solutions for Equity
The first step for ensuring equitable benefit from space resources is therefore allowing the commercialisation of space resources. This might seem counterintuitive, and arguments against it, for example on the basis of neo-colonialism or environmental protection, are completely valid. But in terms of purely equitable access to benefit from space resources, commercialisation is the only way to allow all persons access to space resources. Aganaba argues, however, that this narrative “fails to recognize that solutions to contemporary and historical governance challenges have been much less oriented towards the interests of less developed States and new entrants, making the accrual and sharing of benefits dependent on the free will of those States able to carry out a variety of space activities independently.” This section will therefore evaluate solutions to bringing equity to space mining, and evaluate their feasibility given the necessity of these States’ free will.
In Section B we discussed the shift away from formal institutional treaties towards cooperative norm-building; cooperative, diversely-led norm-building will be invaluable in bringing equity to space mining. The Hague International Space Resources Governance Working Group has been an influential source of norm-building in space mining, actively addressing the need for a governance framework since 2016. It has set out foundations for a space mining framework which places a strong emphasis on the sharing of benefits.98 An international agreement, stemming from widely accepted norms or a formal convention, which vows to uphold the OST, is the best way to bring equity to space mining ventures. Only with such an agreement can the next few solutions proposed really succeed.
What would such an agreement or regulation look like? Susan Willshire looks to the Law of the Sea as well as mining laws to suggest that obligations including innocent passage, freedoms of navigation, freedom from harmful interference, etc. can provide useful parallels to consider in building space mining regulation.99 She proposes a four-tiered approach, similar to maritime boundaries. Tier One is a boundary that goes just beyond the Moon, reserved for scientific discovery and involving little mining activity and significant environmental regulation.100 Tier Two includes the solar system, with limits to mining claims and strict environmental protection.101 Tiers Three and Four are boundaries increasingly far from Earth, and allow more mining claims and fewer environmental regulations.102 This brings us back to frontierism. If “frontiers are not permanent spaces but instead are conjured by specific interest groups in order to be conquered,”103 as Klinger writes, then frontiers can equally be delineated for regulatory purposes. Space regulation could take many forms, but there is a lot of value in Willshire’s proposal.
International Trust Fund
One concrete solution to bringing equity to space law is the establishment of an international trust fund. This proposal is discussed at length by Lotta Viikari, though she writes in the context of liability for (or in prevention of) a major space accident.104 She looks at a fund which pools contributions made by the oil industry to be used as liability insurance in case of oil pollution damage.105 Loder further suggests that “private exploiters of asteroid resources could be required to pay a considerable fee for property rights that could be distributed among OST nations.”106 This fee could take the form of a tax on those conducting space mining activities, which gets distributed into the fund. Semerád formulates a detailed proposal for an asteroid mining tax, which depends entirely on UNCOPUOS for oversight in a capacity similar to border customs.107 He states that social justice and economic sustainability can only be achieved if mining revenues are properly invested for the benefit of future generations through such a taxation scheme.108 There is no doubt that an international fund would help promote the principles of common benefit and intergenerational equity in space.
That said, such a fund seems difficult to achieve in practice. The Hague Group included the idea of a fund in their space mining framework “building blocks”: such a scheme could require space mining companies to pay into the fund, for the pooled monies to help non-space-faring actors to develop their technological capacities.109 Alternatively, the fund could pay out a “citizens’ dividend” to all eligible humans, as has been done in Alaska with a natural resource fund.110 However, the proposal is logistically complex; might still perpetuate inequality in its disbursement of monies; and, going back to Aganaba’s point, would still likely require the free will of space-farers. In practice, an international trust fund will not succeed if it remains voluntary. The authors who suggest a dividend pointedly write: “While the technological challenges in creating a payment system for all eligible members of the Earth’s population are significant, they are probably less than the technological challenges in successfully mining asteroids or other celestial bodies.”111 The arrangement would still have to be mandatory for it to work. Space regulation as it stands is not robust enough to make such an arrangement mandatory; an international agreement could change that.
Other Solutions
Other concrete solutions include a temporal cap on mining an area or restricting the number or scope of operations by a single entity.112 A normative solution, suggested by Fox, would be to extend the sustainable development goals beyond Earth.113 Sustainability is a cornerstone of successful business today in a world that places enormous value on ESG policies. Equity in space mining means ensuring that future space-faring actors will also be able to benefit from space resources. In space law, this future generation principle can be derived from freedom of use and considers the infinity of our universe.114 If a space mining industry develops, this means that there needs to be strict regulation on post-extraction clean up. Chris Newman writes: “what sustainable development requires is that both commercial and state actors ameliorate harmful consequences of exploration so future ventures do not require additional expenditure to mitigate previous activity.”115 Space debris is usually, and understandably, discussed in the orbital sphere, and that discourse is leading to more concrete action.116 That action can be extended to space mining practices, ensuring that resources are not exhausted, and the space environment remains usable for future generations.
Each solution, however, just runs into the same issue: a cooperative, international system is required in order to limit space mining and ensure equity in space resource extraction. Any such agreements will require the voluntary opt-in of spacefarers. It will require, as Aganaba points out, their free will. In an extremely expensive profit-seeking endeavour, this will certainly be a challenge.
What about providence of none?
“The concept that the vast infinity of space is a human resource domain is the utmost of anthropocentric hubris.” – Michelle Hanlon to the US House of Representatives 117
There is a final argument, unrealistic but nevertheless worth highlighting, that perhaps humans should not have access to any space resources. Loder writes: “It is time to expand our ethical framework, not leaving Earth behind, but preventing humanity from transporting planetary damage throughout the universe.”118 Coming back to the economic argument made at the beginning on Earth’s diminishing resources, Klinger points out that “rather than going to the Moon, we could simply implement proven rare earth recycling techniques here on Earth,” as “less than one percent of rare earths consumed are subsequently recycled.”119 The argument that humanity should focus on fixing problems on Earth rather than externalizing problems to other celestial bodies in the universe120 is extremely appealing; space should be the providence of none, other than for scientific purpose. But human greed has been a defining factor of exploration and use of all environments our species has ventured into, and space will not be the final frontier in that regard.
E – Conclusion
“There’s plenty of housework to be done here on Earth, and our commitment to it must be steadfast. But we’re the kind of species that needs a frontier – for fundamental biological reasons. Every time humanity stretches itself and turns a new corner, it receives a jolt of productive vitality that can carry it for centuries.” – Carl Sagan121
Space exploration and use has created technology that has benefited all of humankind for decades. UNOOSA has recently considered reports on the spin off benefits of space technology, mentioning benefits to agriculture, medicine, navigation, energy storage, mechanics, seismic monitoring, disaster management, and so much more.122 Space mining has the potential to create tools that will enhance the human experience on Earth, further scientific discovery, and relieve resource pressures on Earth.123 I am not alone in firmly believing that a space mining industry is bound to emerge in the coming years.124
Many experts have stressed the necessity of creating a legal regime that addresses commercial space mining.125 An international process of legislation must be prioritised above national laws in order to guarantee freedom of use, and that space exploitation can be for the use of all mankind.126 Some see the Artemis Accords as a useful foundation for the creation of such a regime,127 but a legal regime could take many forms, and would perhaps best be lead by an international organisation.
Currently, there is a huge inequality of opportunity in accessing space resources. With rapidly decreasing costs, however, that gap will start to shrink. Hanlon points out that airlines were once sustainable only in a few rich countries, but they are now global.128 Given this tendency, it is imperative that a framework for equity in space mining is established before declining marginal costs incentivise unbridled profit-seeking endeavours by only the richest. Hanlon also stresses that within our “ethical imperative to develop extraterrestrial mining operations, there is an equal imperative to do so responsibly.” Being at the forefront of a potentially huge industry gives a unique opportunity for global actors to collaborate and set norms early on to promote international and intergenerational equity.
Endnotes
2 NASA, “
Hayabusa” (last visited 16 April 2024), online.
7 SpaceX, “
Starship” (last visited 16 April 2024), online.
11 Ram Jakhu et al., “Space Mining and its Regulation” (Switzerland: Springer, 2017) at 12-16.
12 Ricky Lee, “Law and Regulation of Commercial Mining of Minerals in Outer Space” (New York: Springer, 2012) at 20. See also Valero’s prediction that there might not be enough available resources to satisfy the predicted future mineral demand: Alicia Valero, “A prediction of the exergy loss of the world’s mineral reserves in the 21
st century” (2011) 36:4 Energy 1848.
13 “Future demand for electricity generation materials under different climate mitigation scenarios” (2023) 2 Joule 309 at 315.
14 Lee,
supra note 12 at 96.
15 “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”, 18 December 1979, UNGA Res 34/68, art 11 [Moon Agreement].
16 Note that India has signed but not ratified the Agreement.
17 Lee,
supra note 12 at 13.
18 Philip De Man, “Exclusive Use in an Inclusive Environment” (Switzerland: Springer, 2016) at 409.
19 Stephen Gorove, “Interpreting Article II of the Outer Space Treaty” (1969) 37 Fordham L Rev 349 at 350.
20 De Man,
supra note 18 at 407.
22 Stephan Hobe, “IISL adopts Position Paper on Space Resource Mining” (2016) 65 Zeitschrift fur Luft und Weltraumrecht 204 at 205.
24 See Sarah Coffey, “Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space” (2009) 41:1 Case W Res J Intl L 119 at 126; Hobe,
supra note 22 at 208; Michelle Hanlon, “The Mineral Supply Chain and the New Space Race” (testimony delivered before the House Committee on Natural Resources Subcommittee on Oversight and Investigations, 12 December 2023) at 6-7 [Hanlon Testimony].
25 See Coffey,
supra note 24 at 126; Jonathan Sydney Koch, “Institutional Framework for the Province of all Mankind: Lessons from the International Seabed Authority for the Governance of Commercial Space Mining” (2018) 16:1 Astropolitics.
26 “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, 27 January 1967, UNGA Res 2222 (XXI), art IX [OST].
27 International Institute of Space Law Directorate of Studies, “Background Paper” (2016) at 41 [IISL].
28 OST, art VI; “Convention on International Liability for Damage Caused by Space Objects”, 29 March 1972, UNGA Res 2777 (XXVI) [Liability Convention].
29 Liability Convention, arts I, II.
30 Hanlon Testimony at 5.
31 Christopher Newman, “Seeking tranquillity: Embedding sustainability in lunar exploration policy” (2015) 33:1 Space Pol’y 29 at 36.
34 Kai-Uwe Schrogl, “Space sustainability and the global commons”, Room: Space Journal of Asgardia (Autumn 2023).
35 Max Daniels, “The Artemis Accords: what comes after the Moon?” (February 2021) 32 Principium 25 at 26.
36 Scot Anderson et al. “Chapter 33: Policy, Legal Processes and Precedents for Space Mining" in Viorel Badescu, Kris Zacny and Yoseph Bar-Cohen, eds, “Handbook of Space Resources” (Cham, Switzerland: Springer, 2023) 1109 at 1112.
39 “U.S. Commercial Space Launch Competitiveness Act” 51 USC§§ 51301-51303 [US 2015 Law].
41 US, President Trump White House, “Executive Order on Encouraging International Support for the Recovery and Use of Space Resources” (6 April 2020).
42 US, Bill HR 4152,
Space Resources Institute Act, 118
th Cong, 2023, s 2.
43 US, Bill HR 6131,
The Commercial Space Act of 2023, 118
th Cong, 2023 (passed by full committee).
45 “Law of July 20
th 2017 on the exploration and use of space resources”, Luxembourg Parliament, art 1 [Luxembourg Law].
46 Note that otherwise, under the Liability Convention, the State of Luxembourg is liable for the actions of the operator.
48 Jonathan Steele, “Luxembourg and the Exploitation of Outer Space” (2021) 29 Nottingham L J 32 at 38.
49 Luxembourg Space Agency,
supra note 47, s “What Resources Could be Mined?”.
50 UAE, “Federal Law No. 12: On the Regulation of the Space Sector” (19 December 2019), art 26 [UAE Law]; Luxembourg Law, art 16.
51 UAE, “Space Resources Regulation”, Cabinet Decision No. 18/2023(13 March 2023).
53 For a comprehensive overview, see generally Saadia Pekkanen, Setsuko Aoki, and Yumiko Takatori “Japan in the New Lunar Space Race” (2023) Space Pol’y.
54 Japan, “
Basic Space law” (27 August 2008), Act No. 43 of 2008, art 16, from translation found online.
57 “A person who conducts business activities related to the exploration and development of space resources shall acquire the ownership of space resources that have been mined, etc. in accordance with the business activity plan pertaining to the license, etc. for the exploration and development of space resources, by possessing said space resources with the intention to own.” Japan, “
Act on the Promotion of Business Activities for the Exploration and Development of Space Resources” (23 June 2021) Act No. 83 of 2021, art 5, from translation found online.
65 “Statement by the Delegation of the Islamic Republic of Iran”, UNCOPUOS 61
st Sess, 2022.
67 “Submission by the Delegation of China to the Working Group on Legal Aspects of Space Resource Activities of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space” (2024) A/AC.105/C.2/2024/CRP.5, at 3-4.
68 “Vienna Convention on the Law of Treaties” (23 May 1969) UNTS 1155, art 27.
69 US 2015 Law, § 51302; Luxembourg Law, art 2(3); UAE Law, art 2(3); Japan 2016 Law, art 6.
71 Steele,
supra note 48 at 37-39.
72 Ibid at 39; Ram Jakhu and Steven Freeland, “The Relationship Between the Outer Space Treaty and Customary International Law” (2016) at 11. Jakhu and Freeland even write that principles such as “common interest”, “freedom” and “non-appropriation” were actually codified in arts I and II of the OST, but predated the treaty, at 7.
73 Mahulena Hoffmann and Federico Bergamasco, “Space resources from the perspective of sustainability: legal aspects” (2020) 3 Global Sustainability 1 at 3.
74 Lee,
supra note 13 at 157.
75 See Stephen Gorove, “Freedom of Exploration and Use in the OST” (1971) 1 Denver J Itnl L & Pol’y 93 at 93.
76 Martin Svec, “Outer Space, an Area Recognised as Res Communis Omnium: Limits of National Space Mining Law” (2022) 60 Space Pol’y 1 at 5.
77 Kai-Uwe Schrogl, “Legal Aspects Related to the Application of the Principle that the Exploration and Utilization of Outer Space Should be Carried out for the Benefits and in the Interest of All States Taking Into Particular Account the Needs of Developing Countries” in Marietta Benko & Kai-Uwe Schrogl eds., “International Space Law in the Making” (France: Editions Frontiers, 1993) at 219.
78 Ibid at 220 and Annex 1.1
80 Ram Jakhu, Upasana Dasgupta, and Ujwala Raghavan Iyengar, “Exploration and Use of Outer Space for the Benefit and in the Interests of all Countries”, in Marcia Alvarenga dos Santos et al. (eds), 2024, at 3.
82 Moon Agreement, art 11.
84 Hanlon Testimony at 5.
85 Henry Hertzfeld, Christopher Johnson, and Brian Weeden, “How Simple Terms Mislead Us: The Pitfalls of Thinking about Outer Space as a Commons” IAC-15 – E7.5.2 x 29369 at 5. The Moon Agreement has been called a “failure” by many, see generally: Michael Listner, “
The Moon Treaty: failed international law or waiting in the shadows?” Space Review (24 October 2011), online; Karl Lieb “State Sovereignty in Space: Current Models and Possible Futures” (2015) 13:1 Astropolitics 1 at 12.
86 Jakhu et al,
supra note 80 at 15.
88 Johanna Dahlin and Martin Fredricksson, “Extracting the commons” (2017) 31:2-3 Cultural Studies 253 at 254-55.
89 The term ‘land’ is being used loosely, to include any geographical places in our universe.
90 Julie Klinger, “Rare Earth Frontiers” (Cornell University Press, 2017) at 14.
93 See generally Camilla Boisen “The Changing Moral Justification of Empire: From the Right to Colonise to the Obligation to Civilise” (2013) 39 History of European Ideas 335.
94 Hertzfeld et al.,
supra note 85 at 7.
95 See generally Bin Cheng, “Studies in International Space Law” (Oxford University Press, 1997) at Glossary and 229; Hertzfeld et al.,
supra note 85; Michael Laver “Public, Private and Common in Outer Space:
Res Extra Commercium or
Res Communis Humanitatis Beyond the High Frontier” (1986) Political Studies XXXIV 359 at 364.
96 Hertzfeld et al.,
supra note 85 at 7.
97 Bin Cheng,
supra note 95. Contrarily, Judge Manfred Lachs interestingly discusses the very nature of the word “
res” and how it does not actually apply to space and the celestial bodies, which would make
res extra commercium at inapt label. See Manfred Lachs, “The Law of Outer Space – An Experience in Contemporary Law-Making”, Tanja Masson-Zwaan & Stephan Hobe eds. (Leiden/Boston: Martinus Nijhoff Publishers, 2010).
98 The Hague International Space Resources Governance Working Group, “Building Blocks for the Development of an International Framework for the Governance of Space Resource Activities” (Leiden University, November 2019), art 13 [Hague Building Blocks].
99 Susan Willshire, “Terrestrial Legal Considerations in Asteroid and Space Mining Activity” in Md Tanveer Ahmad and Jinyuan Su, eds., “NewSpace Commercialisation and the Law” (McGill Centre for Research in Air and Space Law, 2017) 23 at 30.
103 Klinger,
supra note 90 at 201.
104 Lotta Viikari, “The Environmental Element in Space Law” (Martinus Nijhoff Publishers, 2008) at 202.
106 Reed Elizabeth Loder, “Asteroid Mining: Ecological Jurisprudence beyond Earth” (2018) 36 Va Envtl LJ 275 at 290.
107 Pavel Semerad, “Asteroid Mining Tax as a Tool to Keep Peace in Outer Space” (2023) 65 Space Pol’y 1 at 4.
109 Hague Building Blocks, art 13.1(g).
110 Morgan Sterling Salettaa and Kevin Orrman-Rossiter, “Can space mining benefit all of humanity?: The resource fund and citizen’s dividend model of Alaska, the ‘last frontier’” (2018) Space Pol’y at 4.
112 Loder,
supra note 107.
113 Sarah Jane Fox, “Policing mining: In outer-space greed and domination vs. peace and equity!” (2019) 64 Resources Pol’y 1 at 9.
115 Newman,
supra note 31 at 30.
116 See e.g., “IADC Space Debris Mitigation Guidelines” (June 2021) IADC-04-06 Rev. 5.8.
117 Hanlon Testimony at 4.
118 Loder,
supra note 107 at 317.
119 Klinger,
supra note 90 at 227
120 See generally Ryan Gunderson, Diana Stuard and Brian Petersen, “In search of plan(et) B: Irrational rationality, capitalist realism, and space colonization” (December 2021) 134 Futures.
121 Carl Sagan, “Pale Blue Dot: A Vision of the Human Future in Space” (Balantine Books, 1994).
123 Hanlon Testimony at 6.
124 See e.g. Lee,
supra note 12 at 20.
125 See Lee,
supra note 12 at 20; Jakhu et al.
supra note 11at 7-8; Hobe,
supra note 22 at 209; Stephan Hobe, Bernhart Schmidt-Tedd and Kai-Uwe Schrogl (eds) “Cologne Commentary on Space Law” Vol 1 (Köln, Germany: Carl Heymanns Verlag, 2009) at 59-60; Lieb,
supra note 85; Glenn Harlan Reynolds, “International Space Law: Into the Twenty-First Century” (1992) 25 Vand J Transnat’l L 1 225 at 232, who proposes a UN-led “land-grant” system of property rights; S. G. Sreejith, “The Perils of Plurality: Revisiting the Making of the International Law of the Moon” (2022) 46:1 J Space L 43; Olaf Steffen, “Explore to Exploit: A Data-Centred Approach to Space Mining Regulation” (2022) 59 Space Pol’y.
126 Hobe,
supra note 22 at 209.
127 Melissa Zwart, “The Impact of the Artemis Accords on Resource Extraction” in Hessel et al., eds., “In-Space Manufacturing and Resources” (Weinheim, Germany: Wiley-VCH, 2022) 363 at 365.
128 Hanlon Testimony at 6.