Guest post: “Resource Extraction in Outer Space – Pathways for the Future”

Today’s post is on a topic we’ll all need to think more about (and [perhaps sooner than later): extracting resources from outer space.  Our post will help you think about the legal issues, and it’s based on a panel Lawfire^® contributor Tracy Reynolds moderated as co-chair of the Space Law Interest Group at the American Society of International Law’s Annual Meeting on 3 Apr 24.  The panel was formally titled, “Resource Extraction in Outer Space – Current State of Play and Pathways for the Future” and Tracy summarizes it for you.  Yes, I’ll be you’ll learn a lot!

Resource Extraction in Outer Space -Pathways for the Future

by Tracy Reynolds*

When you consider mining, what images come to mind?  Do you picture someone wearing suspenders and carrying a shovel or panning for gold in a rushing river? 

How about an astronaut with a shovel on the moon?  Actually, the “shovel” is a 5.5 inch “moon rock scoop” with a spring loaded button that makes the scoop’s head rotate.  With just such a shovel, in April 1972, Charlie Duke scooped lunar soil and rock samples on the moon for 72 hours as part of Apollo 16’s scientific mission.^[1]

Today, companies like Ad Astra Rocket Company and AstroForge, Inc., are engaging in a new kind of “gold rush” as they seek to find and extract resources in outer space.  As Ad Astra points out, asteroid deflection/relocation and in-space resource recovery presents both a threat and an opportunity for humankind.  Some asteroids could potentially be “mined” for water, nickel, iron, and other valuable resources.  Others, however, could pose a threat to space stations and satellites in orbit around earth or to the very earth itself.^[3]

The law associated with such outer space resource extraction is a “new realm in an old story,” in the words of Professor Monika Ehrman, Professor of Law at SMU Dedman School of Law and Professor of Engineering (by courtesy) in the Department of Civil and Environmental Engineering at SMU’s Lyle School of Engineering.

Professor Ehrman shared her expertise in terrestrial resource extraction and outer space, along with four other experts, on 3 April 2024 at the Annual Meeting of the American Society for International Law.  The panel, sponsored by the Space Law Interest Group, “Resource Extraction in Outer Space — Current State of Play and Pathways to the Future” focused on law, technology, and the future of outer space resource extraction. 

The new “gold rush”

In her legal research and writing, Professor Ehrman identifies outer space resource extraction as a “new gold rush” with potential legal parallels to the US 1872 General Mining Law.  By connecting TransAstra’s 2023 contract award from NASA to build an inflatable capture to “envelop a noncooperative object” in outer space to terrestrial mining legal concepts like the right of capture, Professor Ehrman demonstrates how terrestrial legal principles could influence the development of the outer space legal regime rule sets associated with such issues. 

Private companies have a role in the development of new technologies, but sovereign States may be the only entities able to provide the longer term investments necessary for such technological research and development.

The existing legal regime

However, any analogies drawn from terrestrial legal regimes must take into account the already existing outer space legal regime.  Turning to other legal frameworks when considering questions of space law could be problematic.  The 1967 Outer Space Treaty, plus three core binding treaties, the 1968 Rescue Agreement, the 1972 Liability Convention, and the 1975 Registration Convention, are the foundational outer space legal framework.^[4]  

In addition, there is a lack of economically viable business cases that could support outer space resource extraction.  When considering such extraction, policy makers and private business must consider whether such extraction is technically or scientifically possible.  Simply because there may be water on the moon’s south pole or helium-3 on the moon’s surface, there may be no physical mechanism by which to extract those resources right now. 

Which should come first?  The capability to extract these resources or the law and policy to govern such extraction? 

As Greg O’Brien, Senior Ocean Policy Advisor at the Office of Ocean and Polar Affairs for the US Department of State, mentioned during his remarks, the UN Convention on the Law of the Sea (UNCLOS) provides a legal framework to govern resource extraction on the continental shelf within national jurisdiction and on the deep seabed beyond national jurisdiction.  These frameworks were negotiated and developed in 1982, many years before the technological capacity to extract these resources matured. 

Even now, no deep sea mining has taken place and it seems unlikely, if not impossible, for any to begin before 2025.  The International Seabed Authority (ISA), established in 1994 pursuant to UNCLOS, has issued exploration permits but no mining has taken place. 

ISA has entered into 15-year contracts with 22 contractors to explore for potential resources, such as polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts, in the deep seabed.^[5]  Mr. O’Brien notes that the legal framework specific to the reciprocating States regime for the seabed that proceeded the regime in UNCLOS Part XI, might present options to consider for outer space.

The legal concept of the “common heritage of mankind” 

Charlotte Verdon, Judicial Fellow at the International Court of Justice, further notes that it was Malta’s permanent representative to the UN who first proposed the legal concept of “common heritage of mankind” in his speech to the General Assembly in November 1967.  During this speech, Arvid Pardo, proposed a “Constitution for the Ocean” which later became UNCLOS. 

This principle is also part of the agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement).  The BBNJ Agreement was adopted on 19 June 2023, and is open for signature from 20 September 2023 to 20 September 2025.  It requires 60 ratifications to enter into force and there are currently 88 signatories and two ratifications.^[6] 

Ms. Verdon pointed out that Part XI of UNCLOS left a gap in the legal regime of the deep seabed (or “Area”) by covering only mineral resources.  At the time UNCLOS was negotiated, scientists were not yet aware that living organisms existed in the deep seabed through chemosynthetic processes that allow organisms to use chemicals instead of sunlight to make energy.^[7]  Now, we know and the BBNJ’s legal framework reflects this fact. 

Ms. Verdon noted that the scientific community will continue to learn and make discoveries here on earth and in outer space.  Legal frameworks must be flexible enough to accommodate these discoveries without throttling advancement.

The BBNJ Agreement reflects a slightly different approach to the concept of common heritage of mankind than that of Part XI of UNCLOS, as the new Agreement does not establish an international entity tasked with managing and regulating the exploitation of marine genetic resources like the International Seabed Authority does in relation to the Area’s mineral resources.  This reflects a compromise between the concepts of common heritage of mankind and the freedom of the high seas. This could be a relevant model for an outer space framework, as the Outer Space treaty similarly suggests a middle ground between these two concepts.

Consultation with indigenous persons

The panel concluded with comments by Justin Ahasteen, Executive Director of the Navajo Nation Washington Office.  Mr. Ahasteen reminded all panelists and the audience that outer space and celestial bodies do not belong to anyone; whether individual person, private company, or State.  Consultation and cooperation with Indigenous persons is necessary to ensure compliance with domestic and international law as outer space resources are explored. 

On 28 December 2023, the Navajo Nation clearly made this point when the Nation protested the potential desecration of a celestial body by NASA’s launch of the Vulcan Centaur carrying the Peregrine Mission One, a moon lander with a payload that included human remains.  NASA faced similar criticism in 1998 and the Biden administration signed a memorandum in 2021 that pledged to consult tribes on matters that impact them.^[8] Mr. Ahasteen noted that no such consultation occurred prior to Peregrine’s launch.

 Mr. Ahasteen further pointed out that both US domestic law and international law serves as the legal framework regarding the rights of Indigenous persons and outer space.  Executive Order 13175 (EO) of 6 November 2000 requires consultation and coordination with tribal governments on matters that impact them.  The US recognizes tribes as “domestic dependent nations under its protection” and, in certain situations, as sovereigns. As such, tribes exercise inherent sovereign powers over their members and territory.

EO 13175 requires the US to work with tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.^[9] Title 25 of the US Code includes the general and permanent laws pertaining to Native Americans.^[10] In addition, the American Indian Religious Freedom Act of 1978 , 42 U.S.C. § 1996, protects the rights of Native Americans to exercise their traditional religions. 

Under international law, both the Outer Space Treaty and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) provide guidance.  The Outer Space Treaty Article 9 requires treaty parties to be “guided by the principle of co-operation and mutual assistance” in their outer space activities. 

The UN Declaration on the Rights of Indigenous Peoples, particularly Articles 12, 18, and 25, state that Indigenous people have the right to practice spiritual and religious traditions and have access to religious sites, the right to participate in decision-making in matters that affect their rights, and the right to maintain and strengthen their distinctive spiritual relationship with traditional lands, territories, waters, and other resources.^[11] 

But most importantly, the UNDRIP calls for the “free, prior, informed consent” of Indigenous peoples with respect to state action that impacts their ways of life.  Mr. Ahasteen reiterated that this should include policy decisions dealing with the future of space exploration and exploitation.

Outer space resource extraction includes environmental, religious, and cultural impacts on Indigenous peoples and their rights.  In Mr. Ahasteen’s view, States and Indigenous peoples are co-stewards of outer space. 

Concluding thoughts

Clearly, the technology that supports outer space resource extraction will continue to develop.  Just as clearly, there are lessons from past experiences with mining here on earth that could inform the choices yet to be made in outer space.  Perhaps, with dedication and tenacity, the next “gold rush” will incorporate those relevant legal frameworks from other disciplines to benefit all.

Notes

^[1] Hadden, Joe.  OVER THE MOON – Shovel used by US astronauts on the moon sells for astronomical amount, available at https://www.the-sun.com/news/9389999/shovel-space-travellers-moon-sells/ published 22 Oct 2023.

^[2] Photo credit to https://science.nasa.gov/image-detail/amf-as17-134-20425/

^[3]https://www.adastrarocket.com/our-engine/applications/asteroid-mining-deflection-and-in-space-resource-recovery/

^[4] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html

^[5] https://www.isa.org.jm/exploration-contracts/

^[6] https://www.un.org/Depts/los/bbnj.htm

^[7] https://oceanexplorer.noaa.gov/edu/materials/chemosynthesis-fact-sheet.pdf

^[8] https://www.knau.org/knau-and-arizona-news/2023-12-28/navajo-nation-president-asks-nasa-to-delay-moon-launch-over-possible-human-remains

^[9] https://www.federalregister.gov/documents/2000/11/09/00-29003/consultation-and-coordination-with-indian-tribal-governments

^[10] https://uscode.house.gov/browse/prelim@title25/chapter3&edition=prelim

^[11] https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

About the Author

Tracy Reynolds, CDR, JAGC, USN is an active-duty military attorney in the U.S. Navy.  She currently serves as Force Judge Advocate to Commander, Naval Medical Forces Atlantic in Portsmouth, Virginia. Throughout her seventeen years of service, she has advised military decision makers both ashore and afloat during peacetime and combat operations.

CDR Reynolds’ focus at NMFL is on investigations, national security cases, and ethics.  Prior to NMFL, she served at SECOND Fleet and advised on Russian hypersonic missiles off the East Coast, Chinese high altitude balloon recovery operations, and countering drones in international air space and on/under the high seas.  CDR Reynolds is a remote PhD student through the University of Adelaide.  Her thesis is that maritime law can and should serve as an analogue to the development of the outer space legal regime.

*Disclaimers:

Tracy Reynolds is a commander in the U.S. Navy. All views expressed in this article are the participant’s own and do not represent the official view of the U.S. government, the Department of Defense, or the Department of the Navy.  In addition, all the participants in the panel she moderated are expressing their personal opinions and not necessarily those of their employers, their nations and any other person or entity.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!