The Convention on the Regulation of Antarctic Mineral Resource Activities

In our research on Space Law and resources, it is interesting in this new Space Legal Issues article to have a look at the (failed) Convention on the Regulation of Antarctic Mineral Resource Activities. “NOTING the unique ecological, scientific and wilderness value of Antarctica and the importance of Antarctica to the global environment”, it is important to understand how the Convention on the Regulation of Antarctic Mineral Resource Activities was written, and how would have been regulated Antarctic Mineral Resource Activities.

The Convention on the Regulation of Antarctic Mineral Resource Activities was concluded at Wellington on June 2, 1988. New Zealand is the depository of the Convention on the Regulation of Antarctic Mineral Resource Activities. Signed by nineteen states, the Convention on the Regulation of Antarctic Mineral Resource Activities has never been ratified. Therefore, the Convention has not entered into force and has been replaced by the 1998 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

The Convention on the Regulation of Antarctic Mineral Resource Activities

The preamble states that “REAFFIRMING that it is in the interest of all mankind that the Antarctic Treaty area shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”. It is interesting to read the notion of “peaceful purposes” reaffirmed by the failed Convention. Let’s recall that it is one of the founding aspects of Space Law.

It then continues with “NOTING the possibility that exploitable mineral resources may exist in Antarctica” and “BEARING IN MIND also that a regime for Antarctic mineral resources must be consistent with Article IV of the Antarctic Treaty and in accordance therewith be without prejudice and acceptable to hose States which assert rights of or claims to territorial sovereignty in Antarctica, and those States which neither recognise nor assert such rights or claims, including those States which assert a basis of claim to territorial sovereignty in Antarctica”.

The preamble then adds “RECOGNISING that Antarctic mineral resource activities could adversely affect the Antarctic environment or dependent or associated ecosystems”. Would it be the same in outer space? Could space mining activates (on the Moon, Mars or on asteroids) adversely affect outer space? It continues with “BELIEVING that the protection of the Antarctic environment and dependent and associated ecosystems must be a basic consideration in decisions taken on possible Antarctic mineral resource activities”.

Finally, “CONCERNED to ensure that Antarctic mineral resource activities, should they occur, are compatible with scientific investigation in Antarctica and other legitimate uses of Antarctica”, “CONVINCED that participation in Antarctic mineral resource activities should be open to all States which have an interest in such activities and subscribe to a regime governing them and that the special situation of developing country Parties to the regime should be taken into account”, and “BELIEVING that the effective regulation of Antarctic mineral resource activities is in the interest of the international community as a whole”.

Article 1 on DEFINITIONS states that “Antarctic mineral resource activities means prospecting, exploration or development, but does not include scientific research activities within the meaning of Article III of the Antarctic Treaty” and “Prospecting means activities, including logistic support, aimed at identifying areas of mineral resource potential for possible exploration and development, including geological, geochemical and geophysical investigations and field observations, the use of remote sensing techniques and collection of surface, sea floor and sub-ice samples. Such activities do not include dredging and excavations, except for the purpose of obtaining small-scale samples, or drilling, except shallow drilling into rock and sediment to depths not exceeding 25 metres, or such other depth as the Commission may determine for particular circumstances”.

Article 2 of the Convention on OBJECTIVES AND GENERAL PRINCIPLES states that “1. This Convention is an integral part of the Antarctic Treaty system, comprising the Antarctic Treaty, the measures in effect under that Treaty, and its associated separate legal instruments, the prime purpose of which is to ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord. The Parties provide through this Convention, the principles it establishes, the rules it prescribes, the institutions it creates and the decisions adopted pursuant to it, a means for: assessing the possible impact on the environment of Antarctic mineral resource activities; determining whether Antarctic mineral resource activities are acceptable; governing the conduct of such Antarctic mineral resource activities as may be found acceptable; and ensuring that any Antarctic mineral resource activities are undertaken in strict conformity with this Convention.

2. In implementing this Convention, the Parties shall ensure that Antarctic mineral resource activities, should they occur, take place in a manner consistent with all the components of the Antarctic Treaty system and the obligations flowing therefrom. 3. In relation to Antarctic mineral resource activities, should they occur, the Parties acknowledge the special responsibility of the Antarctic Treaty Consultative Parties for the protection of the environment and the need to: a. protect the Antarctic environment and dependent and associated ecosystems; b. respect Antarctica’s significance for, and influence on, the global environment; c. respect other legitimate uses of Antarctica; d. respect Antarctica’s scientific value and aesthetic and wilderness qualities; e. ensure the safety of operations in Antarctica; f. promote opportunities for fair and effective participation of all Parties; and g. take into account the interests of the international community as a whole”.

This Article 2 is the heart of the Convention, reaffirming that “the prime purpose of which is to ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.

Article 6 of the Convention on COOPERATION AND INTERNATIONAL PARTICIPATION enounces that “In the implementation of this Convention cooperation within its framework shall be promoted and encouragement given to international participation in Antarctic mineral resource activities by interested Parties which are Antarctic Treaty Consultative Parties and by other interested Parties, in particular, developing countries in either category. Such participation may be realised through the Parties themselves and their Operators”.

Article 8 of the Convention on RESPONSE ACTION AND LIABILITY declares that “1. An Operator undertaking any Antarctic mineral resource activity shall take necessary and timely response action, including prevention, containment, clean up and removal measures, if the activity results in or threatens to result in damage to the Antarctic environment or dependent or associated ecosystems. The Operator, through its Sponsoring State, shall notify the Executive Secretary, for circulation to the relevant institutions of this Convention and to all Parties, of action taken pursuant to this paragraph.

2. An Operator shall be strictly liable for: damage to the Antarctic environment or dependent or associated ecosystems arising from its Antarctic mineral resource activities, including payment in the event that there has been no restoration to the status quo ante; loss of or impairment to an established use, as referred to in Article 15, or loss of or impairment to an established use of dependent or associated ecosystems, arising directly out of damage described in subparagraph (a) above; loss of or damage to property of a third party or loss of life or personal injury of a third party arising directly out of damage described in subparagraph (a) above; and reimbursement of reasonable costs by whomsoever incurred relating to necessary response action, including prevention, containment, clean up and removal measures, and action taken to restore the status quo ante where Antarctic mineral resource activities undertaken by that Operator result in or threaten to resulting damage to the Antarctic environment or dependent or associated ecosystems”.

In situ resource utilization

Celestial bodies – including the Moon or near-Earth objects (NEOs) such as asteroids – are naturally forming objects found beyond Earth’s atmosphere. Many planets, moons and asteroids contain a rich diversity of inert physical substances such as metals, along with gases and water that could be used as energy sources and means to sustain human life as we venture deeper into space. Many of the metals found within the Moon and other celestial bodies are already scarce on Earth. One day, we may use them not only to construct equipment in space but transport them back to support terrestrial activities, employing on Earth the technologies developed to explore and mine resources in outer space.

In space exploration (the discovery and exploration of celestial structures in outer space by means of evolving and growing space technology), in situ (which means “in its original position or place” in Latin) resource utilization (ISRU) is the practice of collection, processing, storing and use of materials found or manufactured on other astronomical objects (the Moon, Mars, asteroids, etc.) that replace materials that would otherwise be brought from Earth.

ISRU could provide materials for life support (a group of devices that allow a human being to survive in space), propellants (a chemical substance used in the production of energy or pressurised gas that is subsequently used to create movement of a fluid or to generate propulsion of a vehicle, projectile, or other object), construction materials, and energy to a spacecraft payloads or space exploration crews. It is now very common for spacecraft and robotic planetary surface mission to harness the solar radiation found in situ in the form of solar panels.

The use of ISRU for material production has not yet been implemented in a space mission, though several field tests in the late-2000s demonstrated various lunar ISRU techniques (using regolith) in a relevant environment. ISRU has long been considered as a possible avenue for reducing the mass and cost of space exploration architectures, in that it may be a way to drastically reduce the amount of payload that must be launched from Earth in order to explore a given planetary body (any secondary body in the Solar System that has a planet-like geology).