space Mining

Commercial activities in the realm of space mining are highly controversial in terms of their legality, as they may or may not be prohibited under international space law, depending on how the law is interpreted.

Article II of the Outer Space Treaty states that “[o]uter 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.”

Some argue that since the term “national appropriation” is not defined in Article II, resource extraction does not constitute “national appropriation” and is therefor not prohibited, especially if such extraction is carried out by corporate entities rather than nation states. Under this interpretation, the Outer Space Treaty permits extraction and resale of resources from outer space.

The Artemis Accords, signed by the US and eight allied nations, takes this interpretation and runs with it. The Accords specifically state that the “extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.”

In addition to their commitments under the international space treaties, individual states have begun creating their own domestic laws governing exploration and expected commercial activities in space and on celestial bodies (e.g., planets, moons, meteors).

In 2015, the United States passed the Commercial Space Launch Competitiveness Act (CSLCA). The main principle of the CSLCA is that, per the Outer Space Treaty, a state or other legal entity cannot own a planet or space object (such as an asteroid), but such entities can extract and sell resources derived from these objects for private profit. This right, as established and defined in the CSLCA, is afforded to US citizens, and defined under Section 402 of the CSLCA.

In 2017, Luxembourg became the second nation to pass a law permitting space mining. The law, titled (in translation) Law of 20 July 2017 on the exploration and use of space resources, gets right to the point in Article 1, which reads, “[s]pace resources are subject to appropriation.” The law is in French, but an unofficial Safari-translated English version of the legislation can be found here.

Regardless of the ongoing legal debate, countries are moving forward with space resource extraction plans. With its Artemis Lunar Exploration program, NASA plans to put the first woman and the next man on the moon by 2024, and have participants conduct scientific studies on different areas around the Moon with a view to extracting and using Moon resources as part of the mission to Mars. This type of resource extraction is known as in situ resource use (ISRU), and NASA, as well as various other national space agencies believe it will be crucial in missions aimed at reaching other celestial bodies, such as Mars.

As the CSLCA makes clear, American law in this area has pulled ahead of international space law. With respect to commercial space mining activities, the legal status and capabilities of both states and private enterprises will need to be better defined in a more widely-accepted agreement than the Moon Agreement, which, perhaps impractically, appears to prohibit commercial space mining entirely in our solar system.

The failure of international space law to catch-up in the near term poses potential risks, as parties risk serious conflict due to space resource rights disputes.

How does the law regard military activities in space? ->