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How to Stay Legally Compliant while Mining in Space

How to Stay Legally Compliant while Mining in Space

As kids, many of us have gazed into the night sky wondering of distant worlds out there. Even people not involved in space exploration (which is most of us) held their breath while following the news of the Rosetta mission, the landing of Curiosity on Mars and many more. 

In the era of rapid technological advancements, we are as capable of exploring space as ever. With National Aeronautics and Space Administration’s (“NASA”) plans to send humans back to the Moon by 2024, establish humanity’s presence on the surface and send astronauts to Mars, a few questions remain – how will humans sustain themselves there? Will they mine natural resources for themselves in space? And… is mining in space even legal? 

This article will shed some light on the regulation of space mining on both international and national level and challenges of applying these legal acts.

Why do We Need to Mine in Space?

Humans have extracted valuable minerals from the Earth since the dawn of civilization. And although the problem of natural resources scarcity and potential draining is not to be ignored, a logical question to ask would be why cannot we mine what we need on Earth and just send it to the Moon (or wherever else) when we need to? Why bother with all the trouble? Space does not exactly have the most welcoming environment. 

The thing is – sending stuff to space is expensive. With the cheapest option being SpaceX Falcon Heavy, sending 1 kg. (approx. 2,2 lbs.) to the low Earth orbit costs about $1,400 and about $5,400 if you feel like sending things to Mars.

As such, it might be cheaper actually to send to the Lunar or Mars surface mining robotic or piloted mining equipment, which humanity’s extraterrestrial hubs can use to extract what they need – oxygen, water, soil, metals, etc.

Who Owns Space

On Earth, when you own land, your ownership rights also extend to:

1) airspace and bowels of the Earth above; and 

2) below your land to the extent needed to utilize your land’s valuable properties. 

You can also mine minerals for personal use on it and receive a permit for commercial mining. 

This is, however, not the thing for celestial bodies. Why? Well, because no one owns them.

According to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967 (the “Outer Space Treaty”), outer space and all celestial bodies are not owned by any state. Outer space objects cannot be appropriated by claiming sovereignty, occupied or otherwise declared owned by anyone.

The Outer Space Treaty provides for ground principles of International Space Law and establishes that the Moon and other space objects are to be explored and used to the benefit of the entire mankind

Basically, the space and everything in it is our common heritage (bet all the aliens out there would not agree). Based on that, extracting resources in space to sustain humanity’s space hubs, carry out experiments and otherwise accelerate space exploration and scientific progress would be a compliant way of space mining, while mining resources and sending them back to Earth for commercial purposes – not so much.

(Space) Gold Rush: A Need for Regulation

With that in mind, mining space might not be perceived by the private sector as a desirable activity. One of the reasons for that is a lack of clear regulation.

The Outer Space Treaty simply mentions that all entities, including non-government ones, are liable for their activities in outer space under international law. Non-governmental bodies should seek authorization from their state of origin and be supervised by it. 

The U.S. pioneered space mining regulation with their Commercial Space Launch Competitiveness Act of 2015. According to this Act, any U.S. citizen or a legal entity engaged in asteroid (space resource found on or within a single asteroid) or space resources (abiotic recourses, including water and minerals) mining is entitled to ownership to any resource obtained. 

This includes the right to possess, own, transport, use, and sell any resources obtained in accordance with applicable law, including the international obligations of the United States.

Although the Act clearly states that the U.S. does not assert sovereignty, exclusive rights or jurisdiction over any celestial body, entitling its citizens to a practically unlimited bundle of right to any resources except extraterrestrial life definitely seems like the opposite.

Similarly to that, Luxembourg has passed the Law on Space Exploration and the Use of Space Resources in 2016. According to that Law, space resources can be appropriated by commercial entities after receiving authorization from the Prime Minister. The aim of the authorization is to ensure “sound and prudent” space exploration.

Additionally, the Cabinet of Ministers is responsible for the actions of authorized missions and has to carry out their continuous monitoring. 

As stated in the supplementary note to the Law, this Law does not violate the Outer Space Treaty because international law only prohibits appropriation of celestial bodies themselves and not resources in their depth. The Law, in its turn, only regulates resources, which are not mentioned or regulated by Outer Space Treaty (as the Luxembourg Parliament believes).

Although the Law is designed to “guarantee clarity and legal certainty” of space exploration, to me it seems like an exploit of a gap and somewhat defective wording of the Outer Space Treaty.

Applying the Outer Space Treaty

When applying teleological interpretation (interpreting law based on its purpose and goals it is meant to achieve), the wording of “the Moon and other celestial bodies” should be interpreted as celestial bodies themselves including valuable resources. If you think about it, every celestial body is pretty much a giant aggregation of natural recourses drifting in space.

The purpose of the Outer Space Treaty is to encourage exploration and use of space to the benefit of the entire mankind. Mining recourses, transporting them back to Earth to sell them simply does not make the cut as the greater good and undermines (pun intended) the principles of international space law.

With space law experts being uncertain whether such national laws are legit, only one thing is clear – an up-to-date international regulation for space mining is required. Preferably, before the first non-governmental space mining business starts carrying out its activities in outer space. 

 

Disclaimer: the information in this article is provided for informational purposes only. You should not construe any such information as legal, tax, investment, trading, financial, or other advice. This article outlines the personal thoughts of the author and may not conform to the position of his company.

Nik Kliapets, Legal Counsel at Legal Nodes

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