As private companies gear up to mine extra-terrestrial resources, the time has come to put in place an effective international regulatory mechanism
After nearly half a century since the Outer Space Treaty (OST) came into force, most of the space-faring nations and private enterprises seem poised to undermine its letter and spirit.
The landscape of space exploration and exploitation has been irrevocably altered with the rise of companies like SpaceX, Blue Origin, or Virgin Galactic. Backed by billion-dollar investments, these private players have been pursuing lofty ambitions, from establishing extra-terrestrial settlements to promoting space tourism.
By all accounts, space mining promises to be an exceedingly lucrative business. For instance, Psyche 16 — an asteroid residing between Mars and Jupiter, is believed to carry precious heavy metals worth 700 quintillion dollars. Similarly, a Toronto-based geological and mining consultancy has estimated the value of water produced on the moon at 10 million dollars per ton.
Studies indicate that private space mining could become a reality as early as 2025. Up until now, one of the key challenges for space-farers was the enormous amount of energy required to launch a spacecraft from the Earth’s orbit. Since this energy requirement was proportionate to the amount of fuel and other supplies carried by spacecraft, enterprises were hunting for ways to fuel the craft outside of the Earth’s orbit.
Now, with the discovery of surface ice in the shadows of craters on the moon, experts state that it will be possible to melt this ice into water and produce hydrogen as well as oxygen for fuelling the spacecraft. In fact, the possibility of establishing a hydrogen refuelling plant or an ‘extra-terrestrial gas station’ on the moon seems closer than ever before.
STATES AND EVOLVING POLICIES
Concomitant with these developments, nation-states appear to be warming up to the idea of private players in space, due to accruing benefits like the lowering of taxpayer costs of outer space missions. The recent executive order signed by the Trump administration that effectively endorses the mining of the moon by private enterprises must be read in this light.
Although Russia has condemned the U.S. decision as an act of colonialism and officially declared asteroid mining as a violation of the OST, it continues to pursue its own plans for establishing a lunar base to mine helium. China has also tested a deep-space capsule for sending taikonauts to the moon. International watchers believe that this is an important constituent in its plans to establish an ‘Earth-Moon Special Economic Zone’.
Even tiny Luxembourg has grabbed global attention by adopting national legislation in 2017, that permits space exploitation. Indian space scientists too have been looking at the extraction of helium-3 from the moon as a clean form of energy.
LEVERAGING INTERNATIONAL LAW
All these developments could potentially spell disaster for an international governance framework premised on equity and sustainability. The existing OST is based on the principle that celestial bodies are not subject to national appropriation. The Moon Agreement of 1984 goes a step further by not only defining outer space as the ‘common heritage of mankind’, but by also prohibiting the commercial exploitation of space resources. It envisions an international regime founded on the principles of ‘rational management’ and ‘equitable sharing’ of outer-space resources. Unfortunately, only 18 countries have signed the Moon Agreement, with most of the actual space leaders staying away.
There are considerable loopholes in the incumbent framework that could work in favour of unbridled privatisation of space mining. For instance, when the terms of the OST were written, private companies were not in the picture. This has given rise to arguments that the treaty’s prohibition of ‘national appropriation’ is only applicable to sovereign nations and private companies are exempt from its scope.
One way around this dilemma would be to establish that nation-states have an almost vicarious responsibility for the actions of private space companies that are operating from their territories or have been issued licences by them. The OST should be considered as a ‘living instrument’ that is interpreted according to emerging conditions.
Most notably, Article 1 of the treaty explicitly states that the exploration and use of outer space shall be in the interests of all countries. The ‘use’ of outer space undoubtedly covers the exploitation of space resources. For private companies, this would imply that even commercial benefits made through the use of outer space ought to be shared by all nations.
The below-par performance of the Moon agreement is a testament to the underlying tensions between developed and developing nations. While most of the developed states accept the common use of outer space in principle, they want to assert their freedom to explore. In current conditions, this would effectively mean that space-resource exploitation is dominated by developed countries, as they have the most advanced capabilities to do so. Developing countries, on the other hand, want to rein in such monopolisation and play a part in the international management of common resources. They prefer to repose their trust in an international committee, independent of exploiting nations.
The United Nations Convention on the Law of the Seas (UNCLOS) framework suggests a way out. One of its strengths was the ability to function as a compromise package between developed and developing nations. The utilisation and ownership of resources in the deep seabed was vested with the International Seabed Authority (ISA). Public and private mining enterprises were permitted to carry out exploration and exploitation under a contract with the Authority. The ISA could also decide upon the equitable sharing of financial and other economic benefits derived from activities in the deep-sea area.
It would be in the interest of the international community to consider similar benefit-sharing mechanisms in the realm of outer space.
- Considering the growing global appetite for private resource extraction and exploitation, it is important to institutionalise best practices and codes of conduct in outer space. The apocalyptic risks associated with space mining dictate the importance of an international regulatory mechanism. Towards this end, a creative interpretation of the law is warranted, based on previous experiences associated with the ‘global commons’.
- The international community should work towards a global consensus on reciprocal rules, rights, and obligations in relation to outer space. The setting up of an international authority for granting licenses to space prospectors can be considered. It could operate on a royalty payment basis, which is deployed towards the common benefit of mankind.
- A 'due regard' obligation should accompany the grant of contracts to space prospectors while extracting and developing resources, along with precautionary mechanisms akin to environmental impact assessments.