MarIus

1.1.1 Setting the scene

There currently is no agreed-upon interpretation of the legal framework pertaining to space resource activities. When the current international space law regime was developed, the legal status of outer space resources was not given much consideration.^{(3) Fabio Tronchetti, “Legal aspects of space resource utilization”. In Handbook of Space Law, ed. Frans von der Dunk, Fabio Tronchetti (Northampton: Edward Elgar, 2015), 777.} Now, as space resource activities are becoming a reality, the absence of clear and functional laws presents significant challenges that need to be addressed.

Over the course of history, the desire of the human spirit to explore new horizons has been a driving force behind some of our greatest accomplishments. From the maritime quests of the 15th century to the space race of the 20th, each exploration era has seen legal, ethical, and technological challenges. The acquisition and utilization of natural resources has consistently been essential for the evolution of human civilizations. However, history shows that unsynchronized access can lead to conflict, and unchecked development can change communities and environments for the worse. The notion of the ‘tragedy of the commons’, for example, illustrates the depletion of resources due to overconsumption.^{(4) Margaret E. Banyan, “tragedy of the commons”, Encyclopedia Britannica. https://www.britannica.com/science/tragedy-of-the-commons. Last accessed June 2, 2024.} Today, as humanity continue exploring the possibilities of the next great frontier – outer space – we find ourselves facing unprecedented legal quandaries. One of these quandaries concerns the potential exploitation of resources in outer space. The issue has sparked intense debates since the beginning of space activities and has recently been reignited once more.^{(5) Tronchetti (2015), 777.} In 2015 the United States authorized the recovery of space resources by private actors through the Commercial Space Launch Competitiveness Act.^{(6) U.S Commercial Space Launch Competiveness Act, Public Law 114-90–NOV. 25, 2015. Title IV of the Act, which is entitled ‘Space Resource Exploration and Utilization’, contains the key provisions; namely §§ 51301 through 51030. Available online: https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf. Last accessed May 20, 2024.} Additionally, the U.S.-led Artemis program, alongside the Chinese and Russian collaborative initiatives, are aiming to set up enduring lunar bases, which will depend on local lunar resources for functionality.^{(7) Masson-Zwaan and Sundahl (2023), 385. See also section 10 of the Artemis Accords. Available online: https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf?emrc=653a00. Last accessed May 15, 2024.}

There are vast amounts of resources in outer space. Celestial bodies contain enormous quantities of both primary elements and platinum-group metals.^{(8) Tronchetti, (2015), 771.} Furthermore, the lunar surface is covered by lunar regolith, a material that may contain a revolutionary energy source for sustained fusion; namely the isotope Helium-3.^{(9) Ibid.} The occurrence of water ice is also a highly relevant topic at this stage of space exploration. Water can be used both for sustaining life, for rocket fuel^{(10) By separating hydrogen from oxygen and converting them into their liquid forms.}, and substantial quantities may be located around the southern pole of the Moon, making it an attractive area for future exploration and settlement.^{(11) Anashe Bandari, “Study Reveals Map of Moon’s Water Near Its South Pole”, NASA, 15 March, 2023, https://www.nasa.gov/solar-system/study-reveals-map-of-moons-water-near-its-south-pole/; “Why is the Moon’s south pole so important”, World Economic Forum, August 23, 2023. https://www.weforum.org/agenda/2023/08/space-water-ice-moon-south-pole/. Last accessed 22 May, 2024.} The interest in commercially exploiting these material, non-renewable resources located on, and inside, celestial bodies such as the Moon and various asteroids, is tinted by disagreement on the legality of such activities.

Extraterrestrial resource utilization will, not surprisingly, be both costly and difficult. Yet, its necessity for future space exploration is reflected in the plans of major space-faring States, where using lunar ice water and other resources is essential.^{(12) Masson-Zwaan and Sundahl (2023), 385.} The foremost reason behind this lies in the immense energy required to launch objects from Earth, escaping its gravitational pull. Typically, about 90% of a launch's total mass is fuel, with the payload comprising just 1 to 5%.^{(13) Stephan Hobe, Space Law (Baden-Baden: Nomos Verlagsgesellschaft, 2019), 9.} This results in severely limited payload capacity, including essential supplies like water. Therefore, an optimal strategy involves minimizing the payload carried from Earth, which could be achieved by sourcing and utilizing materials found beyond Earth’s atmosphere. Presently, the Moon appears as the most likely location for such resource extraction, but interest around the exploitation of asteroids continue to grow. In September 2023, the first sample of asteroid soil was brought back to Earth by NASA’s probe OSIRIS-REx.^{(14) “Origins, Spectral Interpretation, Resource Identification, Security-Regolith Explorer”, NASA. https://science.nasa.gov/missions/osiris-rex/osirisrex-delivers-nasas-first-asteroid-sample-to-earth/, last accessed March 14, 2024.} The following month, NASA launched another mission, designated to explore the contents of the very metal-dense asteroid’ “Psyche” located somewhere between Mars and Jupiter.^{(15) “Psyche: Mission to a Metal-Rich World”, NASA. https://science.nasa.gov/mission/psyche/, last accessed June 01, 2024.} It is the first object of its kind to be examined up close and may learn us more about the properties of resources in outer space.^{(16) Ashley Strickland, “Psyche mission launches as NASA’s first trip to a metal world”, CNN, October 13, 2023. https://edition.cnn.com/2023/10/13/world/psyche-metal-asteroid-nasa-launch-scn/index.html, last accessed June 01, 242024.} It is also a potential part of a wider foundation for future use of valuable resources from asteroids.^{(17) Emily Furfaro, “Is NASA Mining Asteroids? We asked a NASA Scientist”, NASA, June 28. https://www.nasa.gov/general/is-nasa-mining-asteroids-we-asked-a-nasa-scientist-episode-41/, last accessed June 1, 2024.}

The growing interest in lunar resources coincides with recent developments in the space industry, notably characterized by the rise of “NewSpace” – a sector largely driven by private companies born from the digital economy, such as SpaceX, Blue Origin and Virgin Galactic. These companies are not only demonstrating the desire but also providing the means to further human exploration into new frontiers.^{(18) SpaceX will for example be providing the Starship lunar lander, a human landing system for transporting astronauts to and from the Moon, see “As Artemis Moves Forward, NASA Picks SpaceX to Land Next Americans on Moon, NASA, April 16, 2021. https://www.nasa.gov/news-release/as-artemis-moves-forward-nasa-picks-spacex-to-land-next-americans-on-moon/, last accessed June 2, 2024.} However, several critical issues must be addressed before undertaking such ventures. Foremost among these is the ongoing debate regarding the legal status of natural resources on celestial bodies, including the Moon, Mars, asteroids, and meteorites. In response to this, the United Nations Committee on the Peaceful Uses of Outer Space has recently formed a working group dedicated to addressing these concerns.^{(19) The United Nations Committee on the Peaceful Uses of Outer Space [UNCOPOUS] Working Group on Legal Aspects of Space Resources. On its background, see paper submitted by the Chair and Vice-Chair of the Working Group February 6, 2023. A/AC.105/C.1/2023/CRP.16.} Other issues relate to which rules apply when space resource activities commence. For instance, there is no existing framework pertaining to such activities. How responsibility for damage caused in space by a private mining company is allocated, or what the obligations of States are to ensure the sustainable use of outer space, are just a few questions that underline the reality of the matter.

The current legal framework governing space is first and foremost the Outer Space Treaty of 1967^{(20) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 610 UNTS 205, adopted January 27th 1967, entered into force October 10, 1967.} – often dubbed the ‘magna carta’ or ‘constitution’ of outer space.^{(21) Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Milton Park, Oxon: Routledge 2018), 49.} The Treaty has been a major success with its high number of ratifications and foundational principles.^{(22) Status of International Agreements relating to activities in outer space as at 1 January 2024. A/AC.105/C.2/2024/CRP.3.} Yet, it does not mention space resources at all. Another treaty does, however. The Moon Agreement, the fifth and last of the space treaties is the only one that explicitly mentions natural resources in outer space.^{(23) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363 UNTS 3, adopted December 5th 1979, entered into force July 11th 1984.} It has, however, only been ratified by 17 countries, compared to the 114 of the Outer Space Treaty.^{(24) See Status of Treaties (n. 23).} Furthermore, the Moon Agreement’s lack of international impact was amplified by Saudi Arabia’s withdrawal on January 5, 2024.^{(25) Depositary Notification, C.N.4.2023.TREATIES-XXIV.2. Available online: https://treaties.un.org/doc/Publication/CN/2023/CN.4.2023-Eng.pdf. Last accessed May 22, 2024.}

The lack of any mentioning of natural resources in the Outer Space Treaty does not mean that its implications on the legal status of natural resources in outer space has been ignored. On the contrary, debate on this has been ongoing for over 50 years. One of the major topics in this regard has been the impact of the fundamental non-appropriation principle of Article II, specifically whether it prohibits the extraction and use of natural resources in space. Advocates for both sides have made their arguments through the years, there has been written a fair amount of literature on the matter, but the issue has still not been settled.

The lack of agreement in the international community on the legal status of natural resources in outer space represent not only a legal issue, but it arguably serves as an implicit inhibitor of private initiatives. To both raise capital for future ventures, and mitigate the significant financial risks of space activities, commercial companies need clear legal rules.^{(26) Yannick Radi, “Space Mining in Practice: An International Law Perspective on Upcoming Challenges”, ESIL Reflections Volume 13, Issue 8 (May 6, 2024): 2-3; https://esil-sedi.eu/wp-content/uploads/2024/05/Radi-Vol.13-Issue-8_final.pdf. Last accessed June 2, 2024.} Furthermore, the lack of a legal framework could lead to an unlawful state of affairs in the future, where whoever gets to the “gold” first, ends up owning it. This may again compound and result in even more powerful actors with access to proper technology being the only ones benefitting from what some describe as being humankind’s ‘global common’.^{(27) See more on this in section 1.4,3, infra.} Some scholars have therefore advocated the need for a proactive approach to the seemingly inevitable exploitation of natural resources in outer space.^{(28) Ram S. Jakhu and Yaw Otu Mankata Nyampong, “Some Legal Aspects of Space Natural Resources”, European Journal of Law Reform 18, no. 1 (2016): 87. DOI: 10.5553/EJLR/138723702016018001006.}

Through a detailed examination and analysis of the international legal framework, this thesis mainly aims to

1. Clarify the legal status of natural resources in outer space through an analysis and evaluation of the non-appropriation principle [Chapter 2]

2. Analyze and assess how the existing legal framework regulates State responsibility and liability with regards to future space resource activities [Chapter 3]