The future of humanity lies in space. The scenario of human beings living and working in space will come sooner than later. The world is already taking strides in that regard. NASA for example, had announced in 2019 that it was going to allow tourists to visit the International Space Station at a price of 35,000 dollars a night.1 It shall be expensive to take up resources from earth to space to support these ventures, lunar space stations for example. Hence, resource-rich celestial bodies like the moon and asteroids can help in this regard. A single asteroid located in the belt between mars and jupiter has an estimated value of 10 quadrillion dollars based on its iron content alone.2 Space mining can end up being a profitable venture.
NASA is pouring a huge amount of money into the Artemis program, which has the target of landing astronauts on the moon by 2024 and establish a “sustainable presence” on the lunar south pole after that, with private corporations mining lunar rocks and underground water that can be turned to rocket fuel. A legal blueprint is currently being drafted by the US Government for mining the moon, an international agreement called the “Artemis Accords”. Recently,3 in May 2021, South Korea became the tenth country to sign the “Artemis Accords”, with Brazil and New Zealand likely to be next signalling the beginning of a new space age coming up. 4 India, not willing to be left behind, has its own plans. ISRO has been working on a mission to use the resources of the moon to satisfy the energy needs of the country by 2030. The plan includes the mining of Helium-3 rich lunar dust, using it for the generation of electricity and its transportation back to earth.5
The contest between the USA and the Russians to reach the moon defined the second half of the last century. The “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space” (Outer Space Treaty)6 of 1967 and the “Agreement Governing the Activities of States on the Moon and other Celestial Bodies” (Moon Agreement)7 of 1979 tried to keep outer space’s universal nature while barring Governments from undertaking combat actions outside the atmosphere. However, the Moon Agreement has not been ratified by any one of the leading space powers.
The current legal framework regarding the property rights of the Moon and other bodies is highly ambiguous, this could lead to much disagreement and international conflict in the future. The current framework is similar to maritime law where no one can proclaim ownership of the moon, but “if you go there, find it and mine it – it’s yours to keep.” This has allowed both the USA and the Russians to own pieces of rocks collected from the moon. The six Apollo Moon landings from 1969 to 1972 returned with 842 pounds “of lunar rocks, core samples, pebbles, sand, and dust from the lunar surface.”8 Until this issue has been dealt with, mining in outer space can very well continue to be a dream.
Why mine the moon
Fossil fuels of the earth are rapidly getting exhausted. The oil and natural gas supply are estimated to be exhausted by 2050. In such a case, the mining of the lunar and martian surface is seen as a potentially profitable venture. Silicon on mars, Helium-3 on the moon, and other rare elements9 like platinum on asteroids could support the energy needs of our planet for centuries. The moon, unlike the earth, is rich with Helium-3 as a result of solar wind. The mining of hydrogen fuels on the moon could also reduce the costs of space exploration, according to various scientists.10
The United States’ goldrush
The US administration passed the “US Commercial Space Launch Competitiveness Act” in 2015 to “facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes.”11 The intent was to prepare American corporations for outer space endeavours. The problem however lies with the fact that the act differs to the Outer Space Treaty, which the US is a signatory too.
Furthermore, an executive order named the “Executive Order on Encouraging International Support for the Recovery and Use of Space Resources” was signed by ex-President Donald Trump in 2020 stating that, “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law. Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global common. Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law”.12 It is also important to be noted yet again that the United States is not a signatory to the Moon Agreement. The USA is, however, bound by the Outer Space Treaty, the base of all legal frameworks involving activities in space. To understand further, it is imperative to know about the Outer Space Treaty, the Moon Agreement and other legislations currently exist in the field.
The existing legislation on the use of space resources
Several treaties and conventions have been signed regarding the use of space and its exploration by countries including the Liability Convention13, the Registration Convention14, the Outer Space Treaty15, and the Moon Agreement16. The Yggdrasil of all space treaties, the Outer Space Treaty, has been signed by around 134 countries as of February 202117. Under Article I, the treaty states that, “the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” On the other hand, none of the major countries involved in space exploration have ratified the Moon Agreement.18 Though India has signed the agreement, it has not yet ratified it.
The moon agreement and the reason behind its failure
The “United Nations Committee for the Peaceful Uses of Space” (UNCOPUOS) brought forward the Moon Agreement for signature in the late 1970s. To date, the United States, Russia, China and many other space powers have not been a signatory to this treaty.19 The uncertainty and confusion over the “common heritage of mankind” concept in Article 11 is to be blamed for this.20
Article 2 of the Outer Space Treaty states 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”. The doctrine of the “common heritage of mankind” essentially states that the common spaces such as celestial bodies like the moon or mars would be legally owned by nobody, however it can be managed by everyone. Legally speaking, the entire international community will be responsible for the management of such places.21
The problem with the Moon Agreement lies in the Article 4.1,22 which says that, “the exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.” Any economic benefits derived from harvesting of the natural resources from a common space area needs to be shared internationally. Commercial profit is seen to be inappropriate, unless all of mankind is benefitted.23 Thus, if one is a signatory to the agreement, they shall have to share the reap of their efforts on the moon with everybody, whereas a non-signatory would not have to do so. Thus, it is not a surprise that the biggest space powers such as the United States of America, Russia, and China, are parties to the Moon Agreement.
Thus, the formation of a new legal framework having resolved the confusions surrounding the concept of the “common heritage of mankind” and the Moon Agreement is needed to set up a robust structure devoid of conflict and disagreements. The lesson from the sea can be of much help in this regard.
New laws can take lessons from the old ones
The evolution of international and space law is a long and winding road. Old notions develop and new ones develop to fit new sectors of human endeavour. Law does not spring up out of nothing.24 While the moon is the hot topic of global mining discussions, international mining treaties for the sea and Antarctica have been signed. Analogous international legal agreements, such as the Law of the Sea Convention and the Antarctic Treaty, might be used to draw lessons. These places have a lot in common with the moon. They were also declared international zones where no country has a claim to sovereignty.25
In 1994, the “International Seabed Authority” was established to oversee mining activities in international waters.26 Sea-faring States with superior technology believed that the resources should be owned by the State that extracted them. Because the high seas are international territory that belongs to all nations equally, smaller nations believed that the earnings and advantages of the resources should be shared among all States. In the argument over lunar resources, this split is remarkably comparable to that between space powers and non-space power States.27 The United Nations Convention on the Law of the Sea (UNCLOS) recognised the international seabed to be the “common heritage of mankind”, and stated that economic profits from mining were to be shared for the benefit of mankind. Developed and technologically advanced States were worried that the “common heritage of mankind” as applied in UNCLOS III appeared to imply that nations who do not add anything financially or technologically to resource extraction would receive the benefits, lessening the motivation for States with the capacity to invest in research and development. As a result, amendments were introduced.28
Thus, a similar international body, could be set up to oversee all the mining activities on the Moon and other celestial bodies. The “International Seabed Authority” is one model that may be followed. Academics in international law feel that such an organisation is the best, if not the only, method to keep open lines of communication open between public and commercial entities interested in using lunar resources. When deciding on a fair allocation of earnings and other advantages obtained from the exploitation of outer space resources, an international body might take both perspectives into account.29 Scholars have also in the past suggested the establishment of a credit system, unlimited ownership and even the cooperation model of the International Space Station to resolve the issue.30 Licensed space ventures and the provision of a dispute resolution mechanism have also been recommended. 31
As long as a robust legal framework providing security and protecting the property rights is not set up, private space explorers would not have an incentive to realise their ambitions of space exploration. The formation of such a framework is long overdue considering the fact that commercial space exploration is fast becoming a reality. Mining the moon can very well be a part of the foreseeable future and the establishment of an international regime that eradicates the differences over the “common heritage of all mankind” principle for the same is the need of the hour. Only then can humanity as a whole be truly benefitted.
2 Francesca Giuliani-Hoffman, Psyche, an Asteroid Believed to be Worth $10,000 Quadrillion, is Observed through Hubble Telescope in New Study, CNN News (2-11-2020), available at <https://edition.cnn.com/2020/10/31/us/psyche-asteroid-ultraviolet-trnd-scn/index.html>.
3 Joey Roulette, Trump administration drafting “Artemis Accords” pact for moon mining – sources, Reuters (6-5-2020), available at <https://www.reuters.com/article/us-space-exploration-moon-mining-exclusi-idUSKBN22H2SB>.
4 NASA, Republic of Korea Joins List of Nations to Sign Artemis Accords, Nasa.gov (27-5-2021), available at <https://www.nasa.gov/feature/republic-of-korea-joins-list-of-nations-to-sign-artemis-accords>.
5 IANS, India may meet its energy needs from moon by 2030, The Economic Times (20-2-2017), available at <https://economictimes.indiatimes.com/news/science/india-may-meet-its-energy-needs-from-moon-by-2030/articleshow/57243026.cms?from=mdr>.
6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27-1-1967. <http://www.scconline.com/DocumentLink/Y3X8oRn2>.
8 Kelly M. Zullo, The Need to Clarify the Status of Property Rights in International Space Law, 90 Geo. L.J. 2413 (2002) <https://heinonline.org/HOL/LandingPage?handle=hein.journals/glj90&div=68&id=&page=>.
10 NASA, Space Applications of Hydrogen and Fuel Cells, Nasa.gov (2021) <https://www.nasa.gov/content/space-applications-of-hydrogen-and-fuel-cells>.
11 US Commercial Space Launch Competitiveness Act, Pub. L. 114–90, 114th Congress (2015) <https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf>.
12 Executive Order No. 13914, 85 FR 20381 (2020) <https://www.govinfo.gov/content/pkg/FR-2020-04-10/pdf/2020-07800.pdf>.
15 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27-1-1967. <http://www.scconline.com/DocumentLink/Y3X8oRn2>.
17 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27-1-1967 < http://www.scconline.com/DocumentLink/Y3X8oRn2>.
20 Jeremy L. Zell, Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer Space, 15 Minn. J. Int’l L. 489 (2006) <https://scholarship.law.umn.edu/mjil/99/>.
24 Bradley Larschan and Bonnie C. Brennan, The Common Heritage of Mankind Principle in International Law, 21 Colum. J. Transnat’l L. 305 (1982).
25 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41 Case W. Res. J. Int’l L. 119 (2009) <https://scholarlycommons.law.case.edu/jil/vol41/iss1/6/>.
27 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41 Case W. Res. J. Int’l L. 119 (2009) <https://scholarlycommons.law.case.edu/jil/vol41/iss1/6/>.
28 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41 Case W. Res. J. Int’l L. 119 (2009) <https://scholarlycommons.law.case.edu/jil/vol41/iss1/6/>.
29 Edwin Paxson, Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development, 14 Mich. J. Int’l L. 487 (1993) <https://repository.law.umich.edu/mjil/vol14/iss3/8/>.
30 Sarah Coffey, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41 Case W. Res. J. Int’l L. 119 (2009) <https://scholarlycommons.law.case.edu/jil/vol41/iss1/6/>.
31 Edwin Paxson, Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development, 14 Mich. J. Int’l L. 487 (1993) <https://repository.law.umich.edu/mjil/vol14/iss3/8/>.