Some countries, like the US, have established laws regarding rights to access and own space resources, but debate continues at the international level. (credit: Brian Versteeg/Deep Space Industries)

Legal aspects of space resources utilization

by Anne-Sophie Martin
Monday, March 27, 2017

Sustainable development is a key goal of the 21st century. Today, many believe that space resources development will support commercial applications, produce economic return on investments, stimulate technological innovations, and contribute to economic growth. Moreover, space resources may offer alternative sources of materials or may change current production and use practices.¹ There is a possibility to reduce environmental pollution on Earth by mining and manufacturing in space. But the redistribution of economic returns and investments could reduce inequality or contribute to it.

Space exploitation requires opening new markets. In fact, new activities are developing on asteroids and on the Moon. At present, international space legislation does not provide detailed provisions regarding the exploitation of natural space resources. A specific legal regime for the exploitation of resources should be elaborated, perhaps through the United Nations, on the basis of present international space law. For purposes of clarity, this would include defining terms like exploration, exploitation, utilization, and celestial bodies, as well as monitoring space activities. In that sense, multilateral agreements and cooperation with various actors seem to be essential.

Exploration and exploitation of new resources: commercial initiatives

Today, space exploration seeks to generate revenue to increase investments and reduce costs. This is favorable to open new markets for private actors and partnerships between governments and industries. Several companies are pursuing efforts to access resources on the Moon and asteroids for commercial gain.

There are real possibilities to use mineral resources in space for commercial reasons. Such resources could be extracted for return to Earth or used in situ. Within this framework, it would be important to find a possible market structure taking into account development of technologies and human resources.

These new challenges are not just the game of spacefaring nations but also developing countries, because space resources can aid for development and redistribute wealth in the world. But the gap is growing.

From a technical point of view, the extraction and use of space mineral resources appears feasible. Technologies to find and exploit resources already exist are or under development by various companies. But, for the moment, there is no international legal framework for use of space resources; it exists only at national level. More countries have to get involved in space and we have to think about cooperation, collaboration, and partnership.

Space resources utilization and international space law

Currently, international space law does not provide any rules concerning the use of natural space resources. The Outer Space Treaty (OST) of 1967 has 104 parties, while the Moon Agreement of 1979 only has 16.

Articles I and II of the OST make clear that Moon and celestial bodies are not subject to national appropriation, and they are free for exploration and use by all States in accordance with international law. Thus, activities concerning space resources are controlled by those international principles and by national laws that support industry and ensure compliance with the OST. Commercial activities are authorized and supervised by nations.

The Moon Agreement offers more details:

1. Article 6 specifies the right to collect and remove samples and their use for support missions in appropriate quantities.
2. Article 9 provides the right to establish stations.
3. Article 10 establishes the obligation to safeguard and protect life and health of persons on Moon.
4. Article 11.1, 2, 3, 7 provide the rational management and equitable sharing of benefits derived from resources, with special consideration for interests and needs of developing countries and efforts of States that contributed (in)directly.

The Moon Agreement does not exclude exploitation by public/private entities, as long as they are compatible with “common heritage of mankind” requirements.² But an international regime and procedure have to be set up as exploitation is about to become feasible.

From a legal point of view, another issue concerns the term “ownership”, and if there is ownership by extracting resources. Ownership of celestial bodies is appropriation and is not allowed by OST and Moon Agreement, but could an asteroid be an object of appropriation? Ownership of resources in situ is prohibited under the Moon Agreement, but is it possible to have ownership of extracted resources? That is not explicitly prohibited by the OST and by the principle of freedom of use.³

Current international space law establishes a general legal framework for space activities, including those of private entities, but there are no detailed provisions about exploration, exploitation, and use of natural space resources.⁴ We need a more specific legal regime, and one group, The Hague Space Resources Governance Working Group, is studying this topic.⁵ Moreover, national laws are created to provide legal certainty to industry, and states should develop their space policy. too.

National space law and use of space resources

In Europe, Luxembourg⁶ is one of the first countries to have announced its intention to develop a legal and regulatory framework that ensures private space operators’ rights, regarding the future ownership of minerals extracted in space from asteroids.

In the United States, the Commercial Space Launch Competitiveness Act⁷ of 2015 seeks to facilitate commercial exploration and commercial recovery of space resources by US citizens.⁸ The aim is to promote the activities of US citizens engaged in commercial exploration and commercial recovery of space resources, free from harmful interference, in accordance with the international obligations of the US and subject to authorization and continuing supervision by the federal government. The Act is clear on the fact that there is no appropriation or ownership, just the right to extract space resources. This is a US space law that applies for US citizens.

Conclusion

A legal framework for space resource activities related to the extraction and use of mineral and volatile materials, on the Moon and other Celestial Bodies, has to be defined. At the moment, several commercial initiatives are going to be planned, concerning asteroids or the Moon. It is important to note that the exploration and use of outer space is carried out for the benefit and in the interests of all countries. Both existing spacefaring nations and emerging space powers are actors of this new space challenge.

From this point of view, confidence-building initiatives are fundamental in order to ensure that the exploitation and use of outer space are conducted in a peaceful and secure manner. The Committee on the Peaceful Uses of Outer Space (COPUOS) could be a good forum to discuss this topic and create an appropriate legal framework. A “general exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources” is a topic of the COPUOS legal subcommittee’s latest meeting, taking place from March 27 to April 7 in Vienna.

Furthermore, strengthening the dialogue with spacefaring nations and developing countries, as far as the international regulation of space resources, is required as well. Multilateralism seems overwhelming required in this situation.

Endnotes

1. H.G Lewis & R. Lewis, Space resources: breaking the bonds of Earth (1989), p. 394.
2. Article 4 of the Moon Agreement.
3. F. Tronchetti, The Exploitation of Natural Resources of the Moon and other Celestial Bodies, Studies in Space Law, Martinus Nijhoff Publishers, 2009, 382p.
4. I. Bouvet, Certitudes et incertitudes sur le droit des ressources naturelles spatiales, L’information géographique, Armand Colin, 142p. 2010/2 (Vol. 74).
5. See: http://law.leiden.edu/organisation/publiclaw/iiasl/working-group/the-hague-space-resources-governance-working-group.html
6. See: http://www.spaceresources.public.lu/en/index.html. Projet de loi sur l’exploration et l’utilisation des ressources de l’espace du Gouvernement du Grand-Duché de Luxembourg: http://www.gouvernement.lu/6481986/Projet-de-loi-espace---vers-presse.pdf
7. See: https://www.congress.gov/bill/114th-congress/house-bill/2262
8. Title IV of the CSLA (Act of 2015). Section 403 of this Act states that “It is the sense of Congress that by enactment of this act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body”.

Anne-Sophie Martin is a PhD candidate at the University of Rome “La Sapienza” in Italy.

Home