The Lawfulness of Space Mining Activities

For this new Space Law article on Space Legal Issues, we have decided to publish The Lawfulness of Space Mining Activities, a space law Master’s Thesis written by Louis de Gouyon Matignon. Available by simply clicking on the link at the bottom of this article, we hope that this work will help you understand space mining, celestial bodies, the lawfulness of space mining activities, asteroids, asteroid mining…

INTRODUCTION

At a time when resources are scarce, where human needs are growing more and more (and so is demography), and politics is disappearing in favour of greater economic integration, it appears that the exploratory space perspective, and in particular the capacity of the living beings to settle elsewhere than on Earth, becomes feasible. The urge to explore has propelled evolution since the first water creatures reconnoitred the land. Like all living systems, cultures cannot remain static; they evolve or decline.

Private companies, which historically surpass states before making them disappear, accompany this movement of history. Recently, corroborated by cultural productions such as Mars (National Geographic) or Avatar (James Cameron), some have looked at the potential to seek energy outside of planet Earth. This illustrates that humanity is about to live a new moment: the transition from a land-based agro-industrial society, to a service society freed from any energy constraint.

Economy is building the law. And it is therefore quite natural that as History is realised (because of Economy), new legal questions arise. Among these, within a relatively young industry (space activity has for now gone through two movements: first of all, that of “exploration”, by the states and for political reasons, in the 1960s, then, that of the “use”, by companies still largely supported by the states), that of the legality of a potential commercialisation of the resources of outer space, corresponding to a third movement in the space activity, that of the “exploitation” by private companies of the potentialities offered by infinite energy.

The ever-expanding world of technology is constantly turning science fiction into reality. Space mining is an exciting example of this. For decades, scientists have understood that celestial bodies – namely asteroids – contain sometimes high levels of precious metals and other resources. A handful of companies now hope to bring these resources out of orbit and back to Earth. Would these operations be lawful? At a time where environmentally protecting the Earth is (almost) everybody’s concern, and where the depletion of resources is a cause for concern, it is not surprising that some are turning their investments to the wealth available in the Solar System and potentially beyond.

The press has already widely echoed projects led by pioneering start-ups such as Planetary Resources, Inc., or Deep Space Industries. These companies, which raised tens of millions of American dollars, can rely on solid scientific data: the theoretical value of some asteroids, composed in part of gold, nickel, and other precious metals, reaches thousands of billions of American dollars. Closer to Earth is the Moon, which has useful, and therefore precious, resources such as water (which can be used as a propellant), or helium-3 (a future energy source).

Although the large-scale exploitation of outer space resources remains at this stage a long-term project, it illustrates the challenges that space law will have to meet to support an increased human presence beyond Earth. These projects face not only considerable technical difficulties, but also serious legal obstacles. It is to these questions which are nowadays a hot topic in the small space law community that we will try to answer. What are space resources? Does public international law, which space law is a part of, permit the exploitation of celestial resources? What are the legal conditions in which this exploitation could take place? Outer space is in the way of becoming commercialised. The legal framework must catch up.

In the first part of our analysis, we will focus on what public international law provides for the exploitation of celestial resources (I), concentrating especially on the 1967 Outer Space Treaty (A), and the 1979 Moon Agreement (B). In a second part, we will look at some of the solutions envisaged to exploit resources of outer space (II), by focusing on how the concept of exploiting celestial bodies has been imagined by national laws (A), and the ideal international legal instrument that would be needed to ensure a long-term peaceful exploitation of the cosmos (B).

PREFACE

This preface for The Lawfulness of Space Mining Activities was written by Jacques Blamont (CNES), former French space agency’s scientific and technical director, father of planetary balloon exploration, and Space Legal Issues’ Honorary Chairman.

Outer space is generally understood as a global heritage owned by all mankind. The 1967 Outer Space Treaty and subsequent related U.N. legislation prohibit the appropriation of space resources. The philosophy of this legislation is to give precedence to the interest of humanity over any other consideration.

But there is no agreement on the application of such principle. Some consider that the treaty intends to prohibit any exploitation of space resources. Others maintain that the prohibition of appropriation is an invalid concept, and this opinion is widespread.

The general trend supports the interpretation of the principle. In 1973, a provision to the 1979 Moon Treaty maintained that as soon as exploitation of space resources would become feasible, a conference of Members States would establish an international operating system, which would take into account the interests of capable partners. This is to say that the principle of our appropriation would be submitted to the progress of technology.

With indeed the advance of potential exploitation tools, some States have decided to naturally allow to envision prospecting for the exploration of the Moon or asteroids, as Luxembourg, or the United States of America (President Obama signed in 2017 an authorisation for U.S. companies).

The International Treaties are now outdated. The States, and especially the leaders in Space, consider the treaties not only too vague, but not adapted anymore to this present evolution. They feel that a free field should be redefined for profit-oriented enterprises.  And they have the power and the drive to move with strength in that direction.

The past history of the conquest of the world by Europe since the seventeenth Century shows the power of individuals and privates companies, when expansion in a vacuum becomes possible. It will not be stopped in Space within the fast and overwhelming advance of cheap technology, by any U.N. paper.

Adventurers will not stop nor abandon their thirst for huge money grains. Greed will become the main factor of the Space activity, unlimited by any international agreement, as soon as the operations will become easier. Space tourism, what for? Moon exploration, what for? Money. And it is predictable that all existing exosystems with solar systems will not only be impacted, but destroyed. The history of the United States of America in their treatment of the American continent will be followed, whatever the legal rules imposed by the International Community.

Let us hope that Law will stand strong”.

The present Master’s Thesis written by Louis de Gouyon Matignon draws attention on the actual legislation concerning the lawfulness of space mining activities. The author provides data necessary to understand the evolution, which unfortunately, is bleak.

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