SPACE LAW
SPACE MINING: COMMERCIAL OPPORTUNITIES AND LEGAL UNCERTAINTIES DR MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL
T
he potential of space mining as a commercial industry for the future is enormous. As the US Geological Survey has recently stated: “the amount of useful resources in NEOs [near-earth objects such as asteroids] is immense’ and ‘could sustain a million-fold increase in human activity in space for a million years.”1 One barrier to this industry is technology – but this is evolving rapidly. Another barrier is institutional – the lack of a legal regime which can coherently regulate space mining. Terrestrial mining generally relies on a legal regime which has at least three key features. First, licences granting access to exclusive exploration rights within a defined area (prospecting rights). Second, licences granting exclusive rights to extract resources discovered through such exploration with ongoing security of tenure granted subject to the payment of royalties (extraction rights). Third, lawful markets for the selling of such resources. At present, as this article will explain, space law offers no equivalent institutional infrastructure, and indeed contains principles which appear to stand in the way of their implementation in outer space.
IMPLICATIONS FOR SPACE MINING FROM THE OUTER SPACE TREATY The conduct of States, corporations and individuals in outer space is governed by the Outer Space Treaty of 1967,2 which does not contain any provisions expressly addressing space mining. However,
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the framework of principles for the exploration and use of outer space which the Outer Space Treaty provides has important consequences for the regulation of space mining. One of the fundamental principles enshrined in art I of the Outer Space Treaty is that outer space (which includes the Moon and other celestial bodies) is to be “free for exploration and use by all States’, who are to have ‘free access to all areas of celestial bodies”. Further, exploration and use of outer space is to be conducted “for the benefit and in the interests of all countries”. Additionally, art II of the Outer Space Treaty provides that “Outer space … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” These principles are significant to the regulation of space mining because of their inconsistency with a number of the features of a typical terrestrial mining regime. First, there would not appear to be any means by which a State could grant exclusive prospecting rights – which, given the extraordinary cost of an exploration mission to a NEO, would be a significant disincentive to commercial parties. Second, even if a resource were discovered, there does not appear to be any means by which a State could grant exclusive extraction rights to the discovering entity – which would act as a further disincentive to commercial parties. Third, there is an important question regarding whether space mining might breach the art II prohibition of national appropriation3 – which could prevent there being a lawful market for
resources. Fourth, even if these barriers could be overcome, it is unclear whether the ensuing benefits are for the entity undertaking these activities or whether they must be shared with all nations.
THE MOON AGREEMENT: COMMON HERITAGE OF HUMANKIND AND BENEFIT SHARING The picture becomes even less promising for those States who are parties to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) of 1979.4 Only Australia and 17 other States are party to this agreement, none of which are major space-faring nations. The most significant aspect of the Moon Agreement for the purposes of space mining are the provisions of art XI dealing with benefit sharing. Art XI provides that “The Moon and its natural resources are the common heritage of mankind”5 and requires State parties to “establish an international regime … to govern the exploitation of the natural resources of the Moon”.6 The main purposes of that regime are to be to ensure: • “The orderly and safe development of the natural resources of the Moon; • The rational management of those resources; • The expansion of opportunities in the use of those resources; • An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of
