By Jack Swindon, RJH Trading Limited
The potential resources from space mining are limitless. Scientists have already confirmed that water is present on the moon. NASA says that frozen water in the dark recesses of polar craters can be extracted and split into hydrogen, which can be used for rocket fuel as well as conversion into oxygen for breathing. The potential for refueling in space opens up far greater possibilities for longer missions, more viable and economical space docking, and perhaps the potential for inter-planetary colonization.
Valuable deposits of titanium are present, and an abundance of high value platinum on the moon and in asteroids would dwarf the levels currently produced on Earth. Space law currently encourages exploitation of minerals, but this may change with the economic and environmental landscape. This is due to the advent of privately funded space programmes, along with potential concerns over the amount of matter being brought into the Earth’s atmosphere and its unknown consequences. The Google Lunar X Prize has been set up to encourage growth of privately funded space programmes and is currently being competed for by 16 teams from around the world.
Space law will need to adapt to this changing landscape and will play a significant role in metal trading in the near future, with asteroid mining due to begin in 2020. The key questions which will need to be answered surround property rights. When the technology has developed to make space mining financially viable, the principles of the 1967 UN Outer Space Treaty, which currently forms the foundation of space law, will need to be updated.
Supplies of metals may be limitless, but the history of international law concerning space and property rights within it is tempestuous. The basis of space law is found in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘Outer Space Treaty’). 140 countries are party to the Outer Space Treaty, and a further 24 who have signed it but are yet to ratify it. This treaty fundamentally established the principle that no nation can own the Moon. Article II of the Treaty states that 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. The common consensus is that this principle is extended to individuals and private companies, such as Deep Space Industries and the Google backed Planetary Resources, which want to harvest resources to fund their permanent space development. India has already voiced concerns over the limited scope of the Treaty. Retired Air Marshall S. Krishnaswamy said in a speech at a New Delhi symposium on outer space that “India would like to appeal to [the] international community to see what holes must be plugged” and whilst he was primarily concerned with the militarisation of space, similar concerns could equally be raised about space mining.
China has plans to land a probe on the Moon later this year and astronauts by 2020. Because China’s lunar plans are more ambitious than most, some fear they may get too much control of the moon. If the law remains stagnant and based on a first-come-first-served basis, then we run the risk of a ‘second space race’ between countries vying to be the first to exploit the commodities of the moon and asteroids. This is exacerbated by further competition from private companies such as Deep Space Industries and the Google backed Planetary Resources. Other countries are investing in space mining, and Luxembourg in particular is investing heavily in asteroid mining and wants to establish itself as the European centre and ‘Silicon Valley’ of space mining. As the graph above demonstrates, the potential commercial advantages of asteroid mining are huge, and once this value is realised, then it will be more difficult for countries to agree on the direction for space law to take.
New legislation has considered the commercial aspect of space, whereas the Outer Space Treaty was more concerned with diplomacy and military factors. The US Commercial Space Launch Competitiveness Act of 2015 states that any materials discovered on the moon or on an asteroid by American companies is their property and they can do with it what they will. The consequence of this is that individuals are more likely to invest in space mining with the knowledge that they are free to keep what they discover. Legislation may have to be updated once competition increases and the unfettered profit making begins. This Space Act breaks from the spirit of the Outer Space Treaty which focused on the common good of scientific research and sharing of information and property in space. The inheritable right of sovereign states to use space for peaceful purposes was also stressed by the European Union in 2008 when it initiated a procedure to develop an International Code of Conduct for Outer Space Activities. Whilst this code is not intended to be legally binding, it aims to provide a set of principles and guidelines agreed to on a voluntary basis amongst states. The question remains, as stressed by India at the New Delhi Symposium, as to what will actually happen if a company or even a sovereign state encroaches on another entity’s activities, as there are currently no enforcement mechanisms in place.
Countries such as USA, China and Luxembourg will be reluctant to ratify any UN resolutions when they have invested heavily under the principles of ‘finders keepers’ established in the Outer Space treaty. This is evidenced by the failure of the The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (‘Moon Agreement’). The Moon Agreement was a UN Resolution in 1979 that was meant to be a progression from the Outer Space Treaty and aimed to turn jurisdiction of all celestial bodies (including the orbits around such bodies) over to the international community.
Thus, all activities would necessarily have to conform to international law, including the United Nations Charter. The Moon Agreement has effectively failed, as it has not been ratified by any country that engages in self-launched manned space exploration or has plans to do so. Any new proposed treaty will need to allow enterprise whilst setting controls. This will need to be put in place soon, as the two biggest players in private space programmes have already set out their ambitions.
Deep Space Industries is already planning the deployment of 25-32 kilogram (55-70 pound) mini-satellites to asteroids with good prospects to better assess their resources and bring back samples. Planetary Resources has identified asteroids for exploitation using space telescopes placed in orbit last year. The two companies estimate that the new space gold rush could require several billion dollars over the next 10-15 years. Space law will also need to tackle the unknown variable of the environmental effects that space mining will have on our atmosphere. Scientists predict that the mass amount of dust caused by space mining alone could have a disastrous impact, as it could find its way back to Earth, smashing into satellites and anything else orbiting the planet.
The economic impacts of bringing into our atmosphere large quantities of precious metals are that whoever was able to do it first would have a huge power to manipulate prices. However, the environmental consequences of bringing large amounts of matter into the Earth’s atmosphere are unquantifiable. What this means is that the law cannot afford to fall too far behind innovation. It is foreseeable that it may be more economically viable to mine, process and use space resources in space. This would predominantly be for refuelling spacecraft and aiding scientific discovery and would play a part in any future interplanetary colonisation. This will cause its own problems of governing a jurisdiction beyond Earth. The Moon Agreement of 1979 and the reluctance of major space-faring nations to ratify it is an ominous reminder of the difficulty in forming a consensus amongst nations, especially once the disparities of scientific knowledge, levels of funding and the presence of private space companies are taken into account.
United Nations for Outer Space Treaty website; BBC Magazine; Physics News; World Economic Forum; Factor-Tech Magazine; Physics.org; Space.com; Nuclear Threat Initiatives