Disputes over space mining on the horizon?

Laura Yvonne Zielinski

Holland & Knight, Mexico City; Newsletter Officer, IBA Space Law Committee

Laura.Zielinski@hklaw.com

Japan authorises space mining operation on the moon

In November 2022, the Japanese Government authorised the private company iSpace to conduct commercial activities on the moon, including the extraction of regolith and its subsequent sale for profit to the United States' National Aeronautics and Space Administration (NASA). This licence obtained by iSpace is the first licence to extract and sell space resources granted under Japan's Act on the Promotion of Business Activities for the Exploration and Development of Space Resources (‘Japan's Space Resources Act’), and the first case of commercial space resource utilisation.

Domestic laws on commercial space mining

Japan’s Space Resources Act, like similar laws in the US (the Commercial Space Launch Competitiveness Act of 2015), Luxembourg (Law on the Exploration and Use of Space Resources of 2017) and the United Arab Emirates (Federal Law No 12 of 2019 on the Regulation of the Space Sector), provides for private property rights over space resources in the context of incentivising commercial space mining. More specifically, Japan’s Space Resources Act provides that Japanese private business operators shall be permitted to engage in the exploration and development of space resources, such as water, minerals and other non-living resources in outer space, on the moon and other celestial bodies. Luxembourg’s 2017 Law states clearly that ‘space resources are capable of being appropriated’. In turn, the US Commercial Space Competitiveness Act of 2015 ‘promotes the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference […]’. It further states that ‘a United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use and sell the asteroid resource, or space resource obtained […]’. According to Title 50902, the US limits its authorisation to US natural and legal citizens, and entities organised or existing under the laws of a foreign country if the controlling interest is held by a natural or legal US citizen. Luxembourg only requires registration (Article 4).

The Artemis Accords

Moreover, the iSpace transaction will take place within the overall framework of the Artemis Accords. The Artemis Accords, originally signed on 13 October 2020 by eight states – namely, Australia, Canada, Italy, Japan, Luxembourg and the US – contains a set of 13 provisions aimed at facilitating international collaboration in space exploration. Signing the Artemis Accords is a requirement to collaborate with NASA on its wider Artemis Program planning for the next human to go to the Moon by 2024, as well as human exploration of Mars in the future. By signing the Artemis Accords, states agree to collaborate with NASA on the basis of the principles they contain, including the possibility of granting property rights over space resources and the creation of safety zones that allow operations free from interference from other states. By December 2022, they had been signed by 23 states: Australia, Bahrain, Brazil, Canada, Colombia, France, Israel, Italy, Japan, Luxembourg, Mexico, New Zealand, Nigeria, Poland, the Republic of Korea, Romania, Rwanda, Saudi Arabia, Singapore, Ukraine, the United Arab Emirates, the United Kingdom and the US. On the topic of space resources, ‘the Signatories note that the utilization of space resources can benefit humankind by providing critical support for safe and sustainable operations.’ (Section 10(1)).

Disclaimer on compliance with international law

The Artemis Accords are clear in that they view their principles of collaboration as compliant with international space law. Section 10(2) on Space Resources emphasises ‘that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities.’ Similarly, the US Commercial Space Launch Competitiveness of 2015 makes clear that it only applies to space resources ‘obtained in accordance with applicable law, including the international obligations of the United States’, and Luxembourg's Law on the Exploration and Use of Space Resources states that ‘the authorised operator may only carry out the activity referred to in paragraph 1 in accordance with the conditions of the authorisation and the international obligations of Luxembourg’.

The non-appropriation principle under international space law

Despite these affirmations that commercial space mining operations and private property rights of space resources are in compliance with international space law, this view is not uncontroversial. 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 (the Outer Space Treaty), in its Article II provides 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'. At first view, this principle seems to exclude any private property rights in outer space and consequently, any domestic laws pretending the contrary would be in violation of international space law. Article II of the Outer Space Treaty is not only binding on its member states, but is generally accepted to form part of customary international law, being thus binding on all countries. In any event, all four countries mentioned above, allowing for private property of space resources under their national laws have ratified the Outer Space Treaty and, therefore, are bound by Article II. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement), is binding of the signatory states of the Artemis Accords only on Australia, Mexico and Saudi Arabia (even through Saudi Arabia has recently withdrawn from the Moon Agreement with the withdrawal taking effect in January 2024), but it nonetheless informative. The Moon Agreement again states in its Article 11 that ‘the Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means’.

Commercial space mining and the non-appropriation principle

Those states allowing for the extraction and commercialisation of space resources make clear that they view this activity as an authorised ‘use’ of outer space under Article I of the Outer Space Treaty, and not as national appropriation of outer space in violation of Article II of the Outer Space Treaty. Section 10(2) of the Artemis Accords on Space Resources affirms ‘that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty’. The US Space Launch Competitiveness Act states that ‘by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body’. If generally accepted as non-violatory of international space law, the view expressed in the four domestic space laws mentioned above, as well as in the Artemis Accords, could be seen as subsequent practice of the Outer Space Treaty further informing its content and interpretation and, ultimately, customary international law on private resource extraction in outer space. In view of objections for example from China and Russia and other critical voices, this is, however, less than assured. For a detailed discussion of this topic that goes beyond the scope of this contribution, please see Dr Rossana Deplano’s article ‘The Artemis Accords: Evolution or Revolution in International Space Law?’, published online by the Cambridge University Press on 15 June 2021.

Disputes over space mining on the horizon?

For practical purposes, it remains to be seen whether other states will recognise a title to space resources based only on domestic law. If not, with commercial space mining increasingly becoming a reality, we can expect to see this issue being litigated in the near future. While this debate could well give rise to state-state litigation or arbitration, private space mining operators are well advised to include arbitration clauses into their space mining contracts to ensure access to a neutral and efficient dispute settlement mechanism for any disputes over their property rights or other questions they might face relating to their outer space operations.