Overview
When Brad Pitt stepped onto the moon in the 2019 film Ad Astra, he was warned that nation-states and marauders were staking out claims of the moon’s surface. That portrayal is not that far-fetched from the present reality. NASA is busy preparing for a permanent moon base, and a particular breed of aerospace entrepreneurs is looking at the moon, asteroids, and other celestial bodies as future mining operations. In light of these developments, some question whether claiming ownership rights in space material is legal under existing treaties. Since 1967, the Outer Space Treaty has prohibited nation-states from holding property rights in celestial bodies, and some wonder how private ownership can coexist with the treaty’s intention to preserve the “exploration and use of outer space (…) [for] the province of all mankind” (Outer Space Treaty, Art. I). To answer this question, the UN body responsible for outer space activities, the Committee on the Peaceful Uses of Outer Space (“COPUOS”), is in its initial steps of creating a legal framework for mining exploits in space.
The SPACE Act of 2015
Moon rocks have only rarely appeared on the private market. However, with new technologies lowering the cost of operating in space, companies like Planetary Resources, Moon Express, Asteroid Mining Corp., and Bradford Space, Inc. (formerly Deep Space Industries) are testing whether they can build profitable business models dedicated to space resource extraction of high-value minerals.
In 2015, the US Congress passed the Commercial Space Launch Competitiveness Act (the “2015 SPACE Act”) to incentivise the budding industry. It states that private companies:
“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” (§ 51303).
At first glance, this does not appear very extraordinary: essentially just codifying a “finders keepers” posture for private enterprises operating in space. Simple, right? However, this legislation challenges (or at least complicates) the international legal backdrop that has been in place for the past five decades.
The Outer Space Treaty of 1967
The backbone of the “international obligations” that the 2015 SPACE Act alludes to in § 51303 is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (commonly referred to as the “Outer Space Treaty”).
In seventeen short articles, the Outer Space Treaty essentially commits nation-states to use space for peaceful, scientific exploration and future cooperation (see articles I and IV). The provision relevant to our discussion, Article II, states:
“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”.
This provision was seen as fundamental to prevent an interplanetary land grab and the strife that usually attends territorial expansion. The US, the USSR, and 107 other countries, have agreed to turn space into the equivalent of a community science lab meant for observation and study – free from any permanent national appropriation.
Based on the treaty, national sovereignty is clearly off limits; but it remains an open question whether private persons or companies can claim property rights in celestial bodies.
As far back as 1969, Prof. Stephen Gorove argued that they could. He wrote that the Outer Space Treaty “appears to contain no prohibition regarding individual appropriation”. The treaty only considers the responsibilities of states, not private parties. Under Prof. Gorove’s reading, a private company or “an individual acting on his own behalf (…) could lawfully appropriate any part of outer space, including the moon and other celestial bodies” (see Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham L. Rev. 349, 351 (1969)). Prof. Gorove is not alone; some prominent international space policy organisations have recently agreed that private extraction and ownership is permissible.
But some nation-states and academics reject the whole premise of the 2015 SPACE Act, contending that the treaty’s reference to “national appropriation” also prohibits private corporations from depleting space resources. With so many different opinions about the international law in this area, it’s only fitting these critiques and proposed solutions will be discussed at the next meeting of the UN Committee on the Peaceful Uses of Outer Space.
A Potential UN Working Group and Implications for International Law
In 2018, delegations in the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) voiced concerns about extra-terrestrial mining and its implications for international law (see 2018 Report of Legal Subcommittee, paras 227-265). Belgium and Greece have taken the lead in pushing for a fresh debate on this topic and presented the issues in a Working Paper. In April 2019, a wide-ranging debate included calls for a new international regulatory system to oversee outer space mining while other delegations questioned the need for any regulations at this stage of the industry’s development, seeing how the outer space mining industry has practically stalled out due to recent takeovers. Nevertheless, COPUOS’s Legal Subcommittee ultimately agreed to hold informal discussions at its next session in 2020 (see 2019 Report of Legal Subcommittee, paras 239-267, 278).
In their case for an international regulatory regime, Belgium and Greece’s Working Paper makes references to the Antarctic Treaty and the UN Convention on the Law of the Sea (“UNCLOS”), which, like the Outer Space Treaty, limit national sovereignty over areas deemed the common heritage of mankind. However, neither treaty is completely analogous to the considerations of outer space and care should be taken not to carry over the other treaties’ shortcomings. For one, the Antarctic Treaty allows a handful of nations to preserve their territorial claims over the continent, and the UN agency established to oversee the treaty, the Antarctic Secretariat, does little more than hold an annual meeting. The treaty provides no mechanisms to stop treaty violations (e.g. when nations maintain an active military presence on the continent). As for UNCLOS, it has created a laudable international registry and licensing programme for deep seabed mining in international waters. This system established a uniform regulatory framework, but the treaty never received the full support of the US because it required compulsory technology transfers and the payment of “royalties” to developing nations. These propositions sound nice if you are on the receiving end, but try convincing Elon Musk or any other aerospace entrepreneurs to disseminate their companies’ hard-earned technologies to competitors and developing nations upon request.
At the far extreme, a few delegations, including Belgium and Greece in their Working Paper, openly advocate for deliberations to begin with The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (commonly known as the Moon Agreement). Whereas the Outer Space Treaty only prohibits national appropriation, Article 11(3) of the Moon Agreement goes a step further, declaring that no part of the moon – nor any other celestial body (see Article 1) – can become the private property of any individual. Using the Moon Agreement as a starting point would be a mistake because it is far from being an internationally recognized standard. The Moon Agreement only has 18 States Parties and, to date, not a single spacefaring nation has ratified it. Therefore, the major spacefaring nations of the US, Russia, China, India, and Japan have international commitments that lie somewhere in between these two treaties: the countries cannot establish sovereign claims over celestial bodies, but their nationals can, arguably, collect space resources.
A pragmatic middle ground articulated by the Hague International Space Resources Governance Working Group (Hague Working Group) provides a set of “building blocks” towards an international regime overseen by the United Nations that recognises and records priority recovery rights. The Hague Working Group also recommends the Permanent Court of Arbitration and its Outer Space Arbitration Rules as a preferred method to resolve disputes between states or private mining operators.
Conclusion
Considering the different options before COPUOS, the Hague Working Group presents the most promising step forward for any future working group: the building blocks promote a regulatory framework that best encapsulates a public-private partnership in space. The reality of the twenty-first century is that economic competition between companies rather than cold war tensions between nations is what is fuelling the current space race. After all, it was the private sector that successfully developed reusable rockets that lowered the cost of launching material into low earth orbit from $54,500/kilogram (U.S. Space Shuttle) to $2,720/kilogram (SpaceX’s Falcon 9). Private-sector innovations must be fostered, not stifled. That is why adopting pre-emptive regulation which eschews private ownership altogether would be counterproductive to further development. However, that does not mean private parties should be permitted to do anything they please to increase their bottom line. As the Hague Working Group acknowledges, the private sector ought to be restrained by uniform regulatory safeguards so that outer space remains “free for exploration and use by all States (…) in accordance with international law” (Outer Space Treaty, Art. I).