*Collin Riley
I. Introduction
The technological challenges and financial barriers to mining in space remain unconquered as the burgeoning commercial enterprise leaves a trail of defeated companies in its wake.[1] Estimated quantities of precious metals such as platinum, iridium, and gold found in asteroids have prompted staggering evaluations of the industry—some reaching into the trillions.[2] Many believe that helium-3 and water deposits on the moon are essential for the future of space exploration,[3] which is why the idea of mining space resources has garnered so much attention.
With nations and private companies striving to attain the first advantage in the space mining industry, students and scholars worldwide call for more specific international regulations.[4] Current international agreements are vague regarding the collection and ownership of space resources.[5] Proponents for further regulation claim that, without an international agreement, the field could quickly disintegrate into a chaotic free-for-all akin to the California Gold Rush—with much higher stakes.[6] Those in opposition assert that enacting overbearing regulations will stifle development and deter investors.[7] Domestic regulations worldwide serve as an example (or warning) of the industry’s current situation and its likely path forward.[8] The volatile nature of international law and the immense power of certain space-faring countries do not inspire much hope when it comes to enacting global regulations any time soon.
II. A Very Brief History of International Space “Law”
Article II of the 1967 Outer Space Treaty (OST)—the most controlling regulation in current space law—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.”[9] The OST is a multilateral agreement signed and ratified by over a hundred countries including, the United States, Russia, China, and Japan.[10] During the midst of the Cold War and the Space Race between the United States and the Soviet Union, the OST was developed to prevent nations from fighting over territory in space and to avoid the damage that “self-seeking exploitation” might cause.[11] In setting the foundation for the entire industry, the OST prohibits any nation from declaring any celestial body as its own while stating that the exploration and use of space should benefit all of humanity.[12] Since the adoption of the OST, the United Nations also adopted the “Moon Treaty” in 1979, which discussed exploiting the Moon’s resources; however, countries without plans to engage in space mining were the only ones to ratify it.[13]
III. Recent Regulations
In 2015, the United States became the first country to enact space mining legislation with Congress passing the 2015 U.S. Commercial Space Launch Competitiveness Act (Space Act)—giving private citizens and companies the right to “posses, own, transport, use and sell” space resources obtained in accordance with the OST.[14] Following in its footsteps, nations such as Luxembourg and the United Arab Emirates enacted similar legislation that sets up a framework for commercial space mining.[15] Critics of the 2015 U.S. Space Act claim that the legislation might have been pushed through too quickly.[16] Others espouse that the Space Act gives potential miners too much freedom and will hinder the equal access to space resources that the OST calls for.[17]
In 2020, NASA, on behalf of the U.S., launched the Artemis Accords, a non-binding multinational agreement focused on peace, sustainability, and cooperation in space.[18] The Accords reiterated signatories’ compliance with the OST.[19] Although certainly a step in the right direction, certain space-faring nations such as Russia and China remain absent from the signatory list.[20]
IV. What is Driving a New International Agreement
Many individuals have expressed various reasons for further international regulations of the space mining industry. Predominately, proponents suggest a universal framework that would create a legally binding baseline for property rights in space.[21] Comparing the current state of the space mining industry with the California Gold Rush, Mathew Feinman stated: “Like the miners of 1848, these space cowboys will rush in search of the next big ‘score’ while governments of the world try to scramble to piece together the regulations that might ultimately, if the past is any indicator, have to conform to the customs already put in place by the mining companies themselves.” [22]
In addition to facilitating a smooth transition to space mining, advocates for further international regulations emphasize their necessity as a safeguard for the economies reliant on the extraction of precious metals.[23] Should space mining go unregulated, countries like South Africa and Zimbabwe, dependent on platinum mining, or The Republic of Congo, dependent on mining cobalt, could face serious economic threats. Effective regulations could allocate money to stabilize these affected economies while helping to diminish atrocities like child labor often utilized in those countries.[24]
The environmental impact of space mining also dominates regulatory discussions. While advocates of space mining voice the benefits to the Earth’s environment that will come with relying less on terrestrial mining, others have focused on the potential damage to the extra-terrestrial environment.[25] Critics of the legislation on space mining in the U.S. claim that the regulations focus too heavily on ensuring successful business and fail to consider environmental protections.[26] Numerous calls for international regulations make it clear that humanity would benefit from a more specific international framework. However, creating such a framework through international law is challenging.
V. Limitations of International Agreements
International law is a complex system that arises from the actions of states and international actors.[27] In deciding international law cases, the International Court of Justice looks at treaties, customary international law, general principles of law, judicial decisions, and experts’ teachings.[28] Considering the industry’s relative infancy, very few international customs or judicial decisions pertaining to the mining of space resources provide guidance. General principles of law bear relevance but need more specificity. Thus, treaties and experts’ teachings are left to determine international law. However, the lack of ratification by space-faring nations of the Moon Agreement evinces the difficulties of implementing new treaties.[29] Additionally, while various experts around the world have disagreed on paths to achieve new international regulations, a consensus is still possible.[30] Effectively establishing binding international regulations will take a previously unheard-of worldwide coalescence of governments and organizations unified around the common goal of advancing and improving humanity.
*Collin Riley is a second-year day student at the University of Baltimore School of Law and a Staff Editor for Law Review. Before law school, Collin received a Bachelor’s in Business Management from Salisbury University. In May, Collin will join the esteemed staff of Hyatt and Goldbloom, LLC as a summer associate. He would like to take this opportunity to thank the Law Review staff for their immense help in editing and publishing this piece. He would also like to thank his family, girlfriend, and friends for their support and guidance.
[1] See Atossa Abrahamian, How the Asteroid-Mining Bubble Burst, MIT Tech. Rev. (Jun. 26, 2019), https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst-history/.
[2] See Shriya Yarlagadda, Economics of the Stars: The Future of Asteroid Mining and the Global Economy, Harv. Int’l Rev. (Apr. 8, 2022), https://hir.harvard.edu/economics-of-the-stars/.
[3] See Florian Vidal, Helium-3 from the Lunar Surface for Nuclear Fusion?, Polytechnique Insights (May 17, 2022), https://www.polytechnique-insights.com/en/braincamps/space/extraterrestrial-mining/helium-3-from-the-lunar-surface-for-nuclear-fusion/.
[4] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 55–56 (2020); Mathew Feinman, Mining the Final Frontier: Keeping Earth’s Asteroid Mining Ventures from Becoming the Next Gold Rush, 14 Pitt. J. Tech. L. & Pol’y 202, 234–35 (2014).
[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
[6] See Feinman, supra note 4, at 210–14.
[7] See David Sarnacki, Property Rights in Space: Asteroid Mining, 2 Tex. A&M J. Prop L. 123, 146 (2014).
[8] See U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704; Law of July 20th, 2017, on the Exploration and Use of Space Resources, https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html.
[9] Outer Space Treaty, supra note 5, at art. II.
[10] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.S. Dep’t. of State (Jan. 20, 2017), https://2009-2017.state.gov/t/isn/5181.htm#signatory (depicting each country that signed the Outer Space Treaty).
[11] Id.
[12] Outer Space Treaty, supra note 5, at art. II.
[13] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.T.S. 22.
[14] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 52 (2020).
[15] Id. at 52–53.
[16] See Craig Foster, Excuse Me, You’re Mining My Asteroid: Space Property Rights and the U.S. Space Resource Exploration and Utilization Act of 2015, 2016 U. Ill. J. L. Tech. & Pol’y 407, 422–23 (2016).
[17] Id.
[18] See The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, Oct. 13, 2020, https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf.
[19] Id.
[20] Id.
[21] See Feinman, supra note 4, at 220–21.
[22] Id. at 234–35.
[23] See Yarlagadda, supra note 2.
[24] Id.
[25] See Federico Bergamasco, Space Mining and the Protection of Extra-Terrestrial Environment in the Light of Article IX of the Outer Space Treaty, 60 Proc. Int’l Inst. Space L. 157 (2017).
[26] See Foster, supra note 16, at 427.
[27] Lori Damrosch & Sean D. Murphy, International Law Cases and materials 1 (7th ed. 2019).
[28] Statute of the International Court of Justice, art. 38, ¶ 1.
[29] See Katharina Buchholz, The Countries That Signed the Moon Treaty, Statista (Aug. 23, 2023), https://www.statista.com/chart/18738/countries-that-are-signatories-or-parties-to-the-1979-moon-treaty/.
[30] See Feinman, supra note 4, at 221–35; see Pereira, supra note15, at 55–56; see Yarlagadda, supra note 2.
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