09/10/2024
Leading on from my previous blog, we now know that as technology has progressed, there are feasible business cases for mining in Outer Space. However, in view of the desire for commercial Space mining, aspects of international Space law require some interpretation.
International Space Treaty Development
International Space treaties like the Outer Space Treaty (OST), which provide the legal framework for activities in Outer Space, were developed during the cold war. Between 1967 and 1979, five United Nations treaties on Space-related activities were created: the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement. These treaties reflect the tensions of the time; one of the chief concerns, particularly tackled by the OST, was to prevent weaponised conflict in Outer Space. For example, the OST contains explicit disclosure prohibiting the use of “nuclear weapons” in Outer Space. While the OST has primarily achieved its objective of avoiding violence in Outer Space, its drafters could not foresee every new development that would take place.
In the 21st century, technology has advanced to the point where commercial activities are beginning to take place in Outer Space. Legally, one of the main obstacles is the issue of appropriation. The two treaties of note regarding this issue are the OST and the Moon Agreement, which both contain a non-appropriation clause.
Non-Appropriation
Outer Space Treaty (1967)
Article II of the OST 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 differing views on the interpretation of “national appropriation” regarding resource extraction from celestial bodies.
One interpretation gives weight to the ‘national’ portion of the phrase, thereby separating public and private entities. We can see this in the national law of some countries. This will be described in greater detail later on.
From an academic perspective, some commentators argue that allowing private ownership of Outer Space resources warps the wording of Article II for the purposes of justifying commercial aspirations. Since the OST explicitly prohibits nations from appropriating celestial bodies in Outer Space, it is somewhat paradoxical to then allow a business to contravene the very obligations their nations are beholden to.
However, even if it was agreed that the principle of non-appropriation should equally apply to nations and their citizens, the scope of non-appropriation in the OST remains unclear. Even though there is obscurity, it is unlikely that Article II of the OST was intended to impose a flat out ban of resource acquisition and ownership in Outer Space. With the contextual knowledge of when the OST was drafted, it is clear that the main focus of Article II was to ban national sovereign claims of territory in Outer Space, rather than use of its resources.
Moon Agreement (1979)
The Moon Agreement is more direct than the OST regarding appropriation, particularly for resource extraction. The Moon Agreement prohibits ownership of Space resources in our solar system, until participating States create an international regime for the exploitation of Space resources. This provision covers governmental entities, commercial entities, and natural people.
The Moon Agreement was largely unpopular with the international Space community – it only received 18 signatories. Notably absent from this list are the United States, Russia, and China. In fact, of the five UN treaties on Space-related activities, the Moon Agreement is the only treaty that a State (Saudi Arabia in January 2024) has withdrawn from. The popularity, or lack thereof, of the Moon Agreement gives an insight into how the international community is viewing the topic of appropriating Space resources.
Relevance of the Moon Agreement is being tested by the more recent Artemis Accords (2020), which are seemingly at odds with the Moon Agreement regarding exploitation of Space resources. Some legal experts say that a nation cannot uphold obligations to both the Moon Agreement and the Artemis Accords because of their inconsistencies.
International Community Viewpoint
Before the idea of mining in Outer Space became a practical consideration, society had already begun to utilise Outer Space resources, in a sense. A vast number of satellites have been launched from Earth and occupy an orbital path around Earth, an area which there is limited available ‘space’. An orbital path can be considered as a finite Space resource. The international community is clearly in support of satellites and can therefore generally be seen as being in favour of utilising the resources which Outer Space can provide.
We may now begin to see the next step in utilisation of Outer Space resources in the form of resource extraction. In-situ resource utilisation, a phrase coined by NASA, is an example of physical Space resource ownership considered to conform to the frameworks of the OST and the Artemis Accords.
Distinguishing Resource Extraction from Appropriation
The prevailing mindset is that extraction of Outer Space resources can be lawful in view of Article II of the OST, as long as you don’t claim ownership of any territory. Analogy can be drawn to fishing in international waters. No one can make a claim to own international waters, but if you sail out to sea, cast a net, and catch some fish, you own those fish – as long as you haven’t done so in a way that violates any governing treaty, like the United Nations Convention on the Law of the Sea and the Seabed Act. So, looking back to Space, if you are on the Moon and you extract some water, in theory, you own that water – as long as your activities have not violated any treaties governing Space.
Updated Regulatory Framework
National Law
United States
In 2015, the United States passed the “Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act. The SPACE Act is a clear indication of the paradigm shift towards exploitation of Space resources. The SPACE Act provides that “a U.S. citizen … shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law”. In short, the SPACE Act gives US citizens the legal right to mine and own Space resources, while repudiating the idea of asserting sovereignty or ownership over a celestial body in accordance with the OST.
Other Countries
Japan, and perhaps more surprisingly, Luxembourg and the United Arab Emirates, have since enacted national laws permitting ownership of extracted Space resources. These countries are aiming to stimulate investment and growth in their Space sectors by providing enhanced regulatory certainty for Space businesses. See Luxembourg’s Law on the Exploration and Use of Space Resources, where in Article 1 it is plainly stated that: “Space resources are capable of being owned.”
With the uncapped potential for growth that Outer Space provides, it is likely that other countries will introduce similar legislation to encourage development while the sector is still nascent.
Artemis Accords (2020)
First launched in October 2020, the Artemis Accords are a set of principles to govern sustainable exploration and use of Outer Space. The Artemis Accords, which stem from the Artemis program, are a non-binding multilateral agreement between the United States and other participants. As of June 2024, 43 nations have signed the Accords. However, notable spacefaring nations are non-signatories: Russia, China, and Germany.
NASA asserts that the “Artemis Accords reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty, with specific emphasis on Articles II, VI, and XI.” Interestingly, the Section 10, paragraph 2, of the Artemis Accords stipulates that “the extraction of space resources does not inherently constitute national appropriation.” This is perhaps the first time that ‘national appropriation’ – contained in the OST – has been directly addressed. Although some level of clarification has been provided, there is still no clear definition of what resource extracting activities would constitute national appropriation.
One provision of the Artemis Accords that may prove to be problematic in a legal sense, is the provision of ‘safety-zones’ found in Section 11. Section 11 provides for safety-zones which may be implemented around mining sites. Signatories to the Accords have committed to four guiding principles when creating a safety zones. The principles relate to size, scope and duration, while being supplemented by provisions on information disclosure. These temporary zones serve two purposes. Firstly, to facilitate scientific discovery. Secondly, to facilitate safe and efficient extraction and utilisation of Space resources.
It will be interesting to see how the concept of safety zones will be employed in Space mining. Fears have been raised that safety zones could lead to latecomers being excluded from prime mining areas by other nations, thereby giving rise to de facto national appropriation.
Closing Remarks
Since the OST was enacted in 1967, the clouds are slowly parting as to what constitutes appropriation in Outer Space. Through the rejection of the Moon Agreement and the adoption of the Artemis Accords by a number spacefaring nations, it is clear that many countries and businesses alike have aims to acquire resources in Outer Space.
The general idea shared by many spacefaring nations is that the acquisition and use of Space resources does not per se violate the OST, and are therefore potentially lawful activities. However, one particular area which may need to be addressed more coherently, is the mines themselves and the surrounding ‘safe-zones’. They currently prove to be a cause for concern, in view of the appropriation clause under Article II of the OST. Perhaps we can look towards the Antarctic Treaty and the Prior-appropriation Water Rights Doctrine for an insight into how the issue of mining on the Moon will be tackled, as both conceptualise land ownership in a way that is analogous to Outer Space, and they tackle the issue of resource extraction.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
