Space Mining Law: A Reevaluation of Ownership and Mining Rights in the Outer Space

18 Nov 2022
18 Nov 2022

Space mining entails the activities of exploration and exploitation of minerals outside the Earth. Not only planets are considered for such exploitation activities, but asteroids are also regarded in this definition. The recent interest which society has shown towards space mining derives from its increasing plausibility. Companies are increasingly showing interest towards space mining activities. This derives from the already well-known existence of resources in the Moon and the novel discoveries of other asteroids which possess large quantities of metals known and needed by humankind. Companies are actively developing infrastructure for life in space, industrial robots or creating a market for space resources. The field of legislation regulating the overarching topic of space mining, however, is clearly underdeveloped due to the novelty of this topic. The question deriving from this topic is: who owns those space minerals? 

International legislation has long already been aware of such developments in space mining. Such concerns were initially marked by the topics of peace and security, resulting from the space race between the former Soviet Union and United States for reaching the Moon. However, they also developed the idea that the man was able to reach and potentially exploit asteroids and other planets. Thus, the exploitation of such space minerals should rely on a series of international principles which foster equal rights and obligations in exploiting the space. The United Nations, being the most prominent intergovernmental organization focused on peace and security in the globe, aimed to tackle such issues of extraction and ownership of celestial bodies. For this purpose, the Outer Space Treaty in 1967 and the Moon Agreement in 1979 were created, which aimed to regulate rights to ownership and exploitation of the outer space minerals. However, criticism has arisen in recent years about the protective approach which these agreements adopt in terms of exploitation and ownership of resources in the outer space. Scholars claim that exploitation should be supported, while being regulated to ensure the socioeconomic development of the global society. The inaction of international legislative bodies has resulted in a lack of compliance with these pieces of legislation, as they are considered to hinder development and research efforts. Some scholars argue that legislation should establish a framework which allows for some form of limited mining or ownership rights of space resources resulting from mining activities. On the other hand, international law advocates for an approach that does not grant ownership or control to any particular person, as ownership has the danger of accentuating global inequalities. Moreover, if new inequalities emerge, they might result in future conflicts between nations. 

With similar considerations in mind, the Mineral and Petroleum Resources Development Amendment Act (MPRDA) of 2008 introduced the concept of custodianship of mining resources by the State might be an accurate approach to tackling this issue. The real question is whether an ‘international custodianship’ of space minerals through international law can strike a balance between recognition of some sort of ownership and rights of space resources, on the one hand, and compliance with international standards and the sustainable development of space mining, on the other hand.

For the sake of this post, it will be assumed that space mining is an economic activity that will soon be a reality. This can be inferred from how NASA is awarding contracts for Moon material extraction in 2024 and in the fact that other countries such as China and Japan have collected asteroid samples recently.

With reference to the aforementioned international law, the main critique relies on how the Outer Space Treatyprohibits ownership or any form of appropriation of space territory on a national basis. This treaty, signed in 1967, two years before the Apollo mission to the Moon, displays a lack of a solid framework to tackle the issue of future missions of extraction in space. The clearest example is that Article II denies a possibility for “national appropriation”, therefore allowing for any form of private appropriation, which creates a clear legal loophole for space mining which many countries have argued against. In addition, despite this ban on national appropriation, the Apollo Moon landings by the United States in 1969 resulted in almost 400 kilograms of lunar material being brought back to the Earth, contravening Article II. 

The Moon Agreement more specifically states that no individual, NGO, Government or international organization is allowed to declare ownership of the moon. However, once again, its nature allowed most space powers to not sign the agreement, including Russia, the US, Japan and China. The lack of success of these international instruments in enforcing their framework calls for a reconsideration of how an international agreement can ensure that no specific nations become the sole owners of the celestial bodies for mining purposes while respecting the right to sovereignty of countries. In other words, how can international law succeed in binding countries to an international treaty, while ensuring that a ‘global’ and sustainable approach to space mining is achieved?

Compliance of the countries is a challenge which never ensures success due to the principle of sovereignty. However, international law should acknowledge that space mining is a reality, and should try to adapt legislation accordingly by developing terms which are more or less favourable to all developed nations looking forward to mine in space and developing nations who need to be supported in this feat. For this purpose, the starting point might be Article I of the Outer Space Treaty (OST), which states that “the exploration of outer space… shall be the province of all mankind”, meaning that all nations have common rights to those resources, which shall be held equitably. 

In the context of mining activities within South Africa, a similar concept resonates in Article 3 of the MPRDA. It declares the “the common heritage of all the people of South Africa” and declares the State to be the custodian thereof. The MPRDA further states how custodianship does not refer to State ownership of said minerals, but rather vests on the Minister of Minerals & Energy a right to decide which prospecting and mining rights are granted, denied, etc., despite another individual or community being the lawful owner of the land. Furthermore, Section 3(3) of the MPRDA ensures that the Minister considers the principle of sustainable development of the resources within South Africa.

In line with this idea of global ownership and custodianship of the mineral resources, an international institutional framework which resembles the one adopted by South Africa with regards, but on a global scale, would be a potential solution to tackling the future issue of space mining by both private and public entities. However, as many countries have not ratified the Outer Space Treaty, space as such cannot be considered the “province of all mankind” yet. Some scholars in this regard claim that space and all celestial bodies were traditionally considered as res extra commercium, because no one was able to appropriate them and exercise control over them. However, nowadays, we are much closer to exercising control over a section or, potentially, the entirety of one of these celestial bodies and the minerals through technology.  Therefore, all celestial bodies could be better defined as caelestia nullius. This name derives from the conception of terra nullius, in other words, land that is not annexed to any nation on Earth. If all celestial bodies werecaelestia nullius, all nations capable of exercising control over a (tangible portion of a) celestial body could be the owners of such a celestial body.  

All nations should reject this possibility due to the unknown social, economic and environmental implications that such an approach would have, especially taking into account the imbalance between nations in terms of capabilities for space exploration, and the potential for future international conflicts which this consideration of all celestial bodies ascaelestia nullius would result in. However, compliance by all nations in this respect cannot be reasonably expected without a reasonable international legal framework as an alternative in this context of space mining. 

Therefore, it is of prime importance that an international framework is created before any mining activities commence in outer space. This international framework should adopt a position that unites the concepts of common ownership of the space as enshrined in the OST, and the subsequent custodianship of an international body. The latter could resemble the structure adopted by the MPRDA and could be in charge of approving, denying and regulating exploration and mining rights in space. This body would be in charge of evaluating with which global sustainable development requirements each mining operation in outer space would have to comply, as well as any other social, economic and environmental standards. In this regard, the Building Blocks for the Development of an International Framework on Space Resource Activities is a framework which offers a clear inspiration on what the principles, rights and obligations of such mining operations in outer space should look like.

The issue of outer space mining is one of unparalleled difficulty. It poses a potential conflict with right to sovereignty of nations in compliance with an international framework. Moreover, space mining legislation needs to define the structure of ownership of an immeasurable universe. Furthermore, this international framework is not taking into account how the proposed structure of ownership common to all mankind would be affected if the human were to encounter any other form of life or potential civilization in its outer space mining explorations. However, the starting point of mining explorations should, at least, ensure that explorations comply with certain standards and guidelines which relate to equal opportunities for nations and social, economic and environmental development.

Written by René Bartholomeus.