Insight - Encouraging the Recovery and Use of Space Resources: Recommendations for Governmental Policies and Engagement

Thursday, October 8, 2020

The push for space-resource utilization (SRU) continues apace as stakeholders seek new ways to make the dream a reality. This is especially true among policymakers in the United States, but they are not alone. In April, the White House issued Executive Order 13914, on Encouraging International Support for the Recovery and Use of Space Resources. In May, NASA announced the Artemis Accords, followed by a solicitation in September to private actors to buy lunar soil. In August, the Outer Space Institute, a Canadian organization, issued an open letter signed by prominent space experts and professionals from all over the world, calling on the President of the UN General Assembly to launch a formal process for a new treaty on SRU. And recently, a Chinese company announced that it would be launching its own mission to the Moon to test resource-extraction technologies. 

All of these activities indicate that there is a growing momentum to formalize and normalize SRU. And while there continue to be legal and political debates about the manner in which space-resource recovery will take place, it seems almost certain that “space mining” will happen at some point in the near future. Secure World Foundation (SWF) has both actively participated in space resources governance discussions and analyzed the legal, political, economic and social aspects of space-resource utilization. The following is an analysis of some of the key outstanding issues, along with policy recommendations that could make space-resource utilization a sustainable and stable reality. 

Recovery and use of space resources by governments and the private sector 

The development and utilization of space resources is a crosscutting topic that relates to regulatory, diplomatic, scientific, economic, and national security aspects of space governance. The ability to access and utilize in-situ resources in space is a key component to enable long-term sustained human presence in space. For example, the Global Exploration Roadmap, a product of several international space agencies through the International Space Exploration Coordination Group (ISECG), refers to In-Situ Resource Utilization as a critical capability for long-term space exploration. At the same time, SRU could lead to new and better space applications that could provide benefits on Earth. 

Recognizing that there are still ongoing debates in multilateral fora about legal and policy issues around SRU, it is our position that such an activity is not necessarily inconsistent with international law. For example, while Article II of the 1967 Outer Space Treaty (OST) prohibits the national appropriation of outer space, including celestial bodies, the recovery and use of space resources per se would not constitute national appropriation. Rather, it should be viewed as a form of  access and using space, a freedom enshrined in Article I of the OST. The use of space resources envisaged by those states enabling it does not contemplate any permanent or exclusive annexation of territory, but rather the removal, possession, and utilization of space mineral resources for activities currently considered to be peaceful. Developing an international consensus on the lines between impermissible annexation of territory and peaceful, productive utilization of resources will be crucial, including how to provide authorization and continuing oversight of any SRU activities in accordance with Article VI of the OST. 

SWF does not see a fundamental international legal difference between recovery and use of space resources by governments or by the private sector. Both are, in principle, bound by the same international rights and obligations. However, there is a difference in how those rights and obligations are implemented. Governments need to put in place policies and regulations to ensure that SRU by both their own agencies and private sector entities is consistent with international law. That implementation may be different for private and public entities at the national level, but the obligations are the same under international law. 

It is also important for governments to work with other governments to move towards a consensus framework, likely a non-legally binding multilateral agreement, for SRU that can provide a predictable legal and economic environment for the private sector and reduce tensions between governments over the issue. The final result could be something similar to the Constitution of the International Telecommunication Union. This international consensus-building is crucial for a number of reasons. First, space is a shared domain and an area where State sovereignty is restricted by international law. Secondly, while the U.S. may be the first to foster commercial SRU, other nations will follow. Consequently, a broadly uniform approach by various States will be fundamental in a sustainable economic sphere. Thirdly, the space community  will need the cooperation and support of many States on a wide range of challenges (like space traffic management), and reaching mutual agreement on space-resource governance could encourage better discussions in those areas. 

Promoting a stable, predictable environment for private sector recovery and use of space resources 

While the 2015 U.S. Commercial Space Launch Competitiveness Act (CSLCA) confirmed a long-standing U.S. policy and legal right for U.S. entities to conduct SRU activities under national law, it did not provide a regulatory or licensing process to enable those activities. Likewise, there is no mechanism for assignment and international recognition of priority or access rights to resources, nor is there means for deconflicting potential competition for access to specific resource sites on the Moon or asteroids. Addressing these issues will become important for the U.S. and any country seeking to provide certainty and predictability to commercial SRU activities. Additionally, there remains considerable uncertainty around the technical and business approaches to SRU, so efforts to develop regulatory specificity should proceed in an adaptive incremental manner.

The current international diplomatic discussion on space resources also shows that there is a huge need for more communication and dialogue between countries. While there are a growing number of countries that support SRU, including by private actors, many countries still have questions about how to coordinate such activities among companies from diverse legal jurisdictions. Most of these countries lack the national capacity or technical expertise to fully participate in such specialised discussions. Major space-faring nations, with their breadth of space exploration, diplomatic, and industry capabilities, are well-positioned to lead engagements towards building space-resource awareness among space professionals and government officials. Doing so will help the community articulate the ways in which space resources will provide socioeconomic benefits, and ultimately help build national policies and legal regimes to help realize those benefits. 

A need for an international mechanism to govern space resource utilization 

Like air traffic and many other activities, much of the legal authority to regulate and manage space activities rests with nation states, not international bodies. International bodies often play a critical role in establishing standards and facilitating coordination, but the licensing and enforcement of those standards is at the national level. One example of this type of governance is that of telecommunications, through the regime of the International Telecommunication Union. Similarly, the governance of SRU requires national policy and regulatory mechanisms to enforce compliance with international law. 

But national mechanisms alone are not sufficient. In order to provide effective governance and the legal certainty that governmental programs and commercial operators need, international coordination and agreement will be required. Individual states (including the U.S.) cannot provide that certainty on a unilateral basis. For example, one cannot create a claims system without some level of mutual recognition and protection, be that on a bilateral, plurilateral, or multilateral basis. Providing private operators legal certainty in SRU will fundamentally require international consultation and coordination.

We do not think this coordination will take the form of a treaty, at least not initially. Given the nascent nature of commercial space resource access and utilization, a binding treaty is likely inappropriate before the actual activity begins and may not even be appropriate thereafter. Implementation of space-resource governance will require international coordination, but that coordination might take several forms. 

A good starting point for these multilateral coordination are the Building Blocks recently developed by The Hague International Space Resources Governance Working Group (of which SWF was a Member and Consortium Partner). While the Building Blocks themselves are unlikely to be implemented in their entirety by any country, they represent a possible starting point for discussion. Should such discussions at the UN turn towards deliberate action, a prudent and modest goal might be the articulation of tightly-focused soft law instruments, akin to successful UN accomplishments that did not rise to the level of new treaty-making, such as the Long-Term Sustainability Guidelines for space activities. 

Near-term risks of not aligning policies and practices

One significant risk to SRU is that the governance framework will evolve in a fractured way, with different governments putting in place conflicting regulatory regimes or interpretations of the core legal principles. Conflicting national regulatory regimes limits the investment in and market for space resources and could lead to legal challenges. Such unpredictability could seriously limit space development. Similar issues arose in the early days of commercial aviation and resulted in serious negative consequences for commercial development. 

Another significant risk is that conflicting policies and practices for SRU could contribute to security concerns on Earth between countries. Relationships may be damaged or tensions could rise if one country believes another country is violating legal principles of SRU, particularly if they believe the rhetoric about the massive economic and strategic value of space resources. Moreover, the level of national prestige associated with SRU will make conflicts particularly sensitive, even if the real economic stakes are unknown. As such, it will benefit even national security interests to reach a consensus framework with the international community around these activities. 

Finally, in working through those recommendations, we think that some of the language and rhetoric currently being used to describe space resources activities is detrimental to effective socialization of the concept internationally. Language such as the “first space-made trillionaire” and “trillion-dollar asteroid” lacks both rigorous analytical foundations and exacerbates international concerns over equitable use of space resources. In addition, unilateral declarations that well-established economic principles such as “global commons” do not apply to space are factually debatable but more significantly also play into the rhetorical  efforts of other countries seeking to limit U.S. space capabilities. It is also important not to underestimate the political and cultural sensitivities related to SRU around the world. Many countries have experienced unequal or illegal resource extraction in their history, and accompanying human and environmental catastrophes. Although SRU is largely removed from those issues, using terms such as “colonization”, “frontier”, and “exploitation” in association with space resources makes an inflammatory rhetorical link to that history and will likely result in geopolitical pushback. Such pushback can be tempered by giving developing countries a sense of ownership over SRU activities, particularly within discussions over a governance framework.

Concrete recommendations

Given the above, we have two short-term recommendations for governments pursuing SRU, following on from the lessons learned through the U.S. experience:

1. Implement Licensing Pathway for Commercial Space-Resource Activities: Governments should move to implement domestic mission authorization regimes to close regulatory gaps in order to meet Article VI obligations of the OST of authorizing and providing continuing supervision to national activities in space. 
2. Diverse International Consultations: In working to achieve sustainable SRU, it is important to broaden the dialogue to include emerging space nations and developing countries. Doing so will facilitate the development of complimentary national and international policies around SRU.