Global commons or a wild frontier—open for competitive exploitation, profit and resettlement?
Published in The Ploughshares Monitor Volume 37 Issue 1 Spring 2016
Technology has “opened up a new world of outer space—a celestial world filled with both bewildering problems and dazzling promise. This is, indeed, a moment for honest appraisal and historic decision.”
U.S. President Dwight D. Eisenhower UN General Assembly, 1960
A new age of space prospecting
Humans are entering a new space age. Our interactions with the outer-space environment will be amplified and direct. Soon, we won’t be restricted to passively using space resources from our position on Earth. We will be able to take, claim, own, and remove the minerals, energy, and water of other worlds. Indeed, water extraction to support space-based refueling stations may be possible within the next decade (Buchan 2016).
While the technological and financial hurdles are steep, the prospects opening in outer space are exhilarating and inspiring. New companies are heading the call, including Planetary Resources, an asteroid prospecting company; Deep Space Industries, founded to “find, harvest, and supply the asteroid resources that will transform the space economy”; and Moon Express, which seeks to “unlock the resources of the Moon.”
The legal path to the extraction of space-based resources is based on a reimagining of outer space. Instead of seeing outer space as a global commons, with the constraints implied in the name, it is now being viewed as a wild frontier open for competitive exploitation, profit, and settlement. This new imagining needs to be examined, questioned, and subjected to global debate.
Claiming property rights in space
In November 2015 the U.S. government signed into law the U.S. Commercial Space Launch Competitiveness Act, which gives U.S. citizens property rights over the resources that they extract from asteroids. This unilateral action by the United States aims to spur exploration of space by encouraging private investment into space flight and space-based mining technologies. It is based on a vision of outer space as a new economic frontier for American industry. And it is tied up with longer-term visions of human settlement in space.
The United States is not the only country interested in the riches of space. Luxembourg (2016) recently announced plans to become a European hub for companies that seek to extract space resources, which it will support with its own “development of a legal and regulatory framework confirming certainty about the future ownership of minerals extracted in space from Near Earth Objects (NEOs) such as asteroids.” China’s ongoing Chang’e lunar probe program aims to reach the Moon, ostensibly to mine helium-3 as an energy resource (Hewitt 2015; Day 2015). Like asteroids, the Moon is believed to contain a variety of resources, which companies such as Moon Express are also keen to exploit.
The race to claim and profit from space minerals is accelerating. Michael Byers (2016), a Canada Research Chair in Global Politics and International Law at the University of British Columbia, recently urged Canada “to adopt a commercial space act that recognizes the right of Canadian companies to own minerals acquired in space.” Only by reaching “for the final frontier” in this way, he believes, can Canada maintain its dominance as a mining country. Such an attitude reopens governance questions about the ownership and uses of space by reinterpreting established space law. Again we see a reimagining of outer space as a final frontier, rather than a global commons.
Current legal status
When Russia launched the first space age with its Sputnik satellite in 1957, it raised a unique challenge to the world to create laws to govern activities in the new realm of outer space. Jurists had first to consider how this vast, unknown domain would be imagined (Lex-Warrier 2015).
Reflecting an era of emerging universal values, the 1967 Outer Space Treaty imagined space as similar to the Antarctic. The OST was based in large part on the Antarctic Treaty. Outer space was established as a res communis—a common heritage of humankind to benefit all people (Preamble). Space was imagined as a peaceful domain in which states would cooperate in exploring and using resources (Article III). It was not to be subjected to appropriation (Article II), nor was it to be armed by any state (Article IV). But the OST was silent on military activities in space, and the preeminent principle of free access to and use of space as a global commons (Article I) both permitted and encouraged a more powerful vision of space as a strategic high-ground and a realm of intense military competition. Until the recent advent of private access to space, military programs were the most important driver of activity in outer space.
The rush to enable the private mining of space resources is clothed in the universalistic ideals of outer space espoused in the OST. Peter Diamandis of Planetary Resources has declared that humans have a “moral obligation to become an interplanetary species” to access “the near infinite quantities” of “everything we hold of value on this planet, metals, minerals, real estate, energy sources, fuel” (Riederer 2014). Incidentally, such prospecting also promises what Moon Express founder Naveen Jain has referred to as “a shit load of money” (Clark 2013).
But is the OST silent on space mining? Dr. Ram Jakhu of the Institute of Air and Space Law at McGill University argues that Article II, which bans appropriation, means that natural resources cannot be claimed by anyone (CBC News 2015). Dr. Gbenga Oduntan (2015) of the University of Kent asserts, “The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbridled commercial exploitation of outer-space resources.”
There are legal disagreements over the meaning of appropriation (Babcock 2015). Those who support private appropriation of space resources emphasize the lack of a specific ban. Indeed, they note that there were no objections when the United States brought back lunar rocks from its Apollo missions (White 2014). But “not illegal” is not necessarily “legal.” Current space-mining strategy employs the disruptive model of Silicon Valley, where it has its financial roots; like Uber, it exploits a lack of regulation and a first-mover advantage, skirting questions of legality. As U.S. Congressman Lamar Smith of Texas stated: “This is the future of space” (CBC News 2015).
Can regulations catch up with this future? The International Telecommunications Union governs the allocation and use of space resources such as radio frequencies and orbital slots. Perhaps this current model of regulating passive uses of outer space can become the basis for regulation of more penetrating uses of space. At the moment, however, there is no concerted, global effort on this front.
It is more likely that powerful states will adopt “reciprocal recognition” of mining claims, which the United States currently uses for deep-sea mining (Minter 2014). Indeed, arguments in favour of space mining frequently equate outer space with the high seas. No one owns the fish, but possession leads to ownership (Wall 2015). This argument is echoed by those urging Canada to recognize private property rights in space. This argument is wrong.
There are many reasons why outer space is not analogous to the high seas (and it should be noted that neither fish nor deep-sea minerals are freely up for grabs). The most important is that outer space and the seas are different kinds of legal space. Like the Antarctic, outer space is awarded the status of res communis, so that it belongs to the whole of the global community. Fishing in the high seas is based on res nullius, with resources belonging to no one until they are claimed (Listner 2015). In other words, asteroids aren’t simply there for the taking. It is not that they belong to no one—they belong to everyone.
While Listner asserts that the U.S. approach to property rights in outer space represents a reinterpretation of the law, I argue that it is more fundamental than this. It represents a reimagining of outer space and how we as humans relate to it. Space is no longer imagined as a global commons, but as the Wild West—the final frontier, to be exploited by anyone able to do so.
This new vision involves a decidedly different approach to governance. And it raises ethical, cultural, and environmental questions about the future of human interaction with the space beyond our planet.
The persistent linkage of outer space with the high seas is concerning because the world’s oceans aren’t exactly an example of good stewardship. Marine life is plundered. Governance is spotty. The United States has yet to agree to the International Convention on the Law of the Sea, and remains outside international mechanisms to regulate deep-sea mining through the International Sea Bed Authority.
Seeing space as the final frontier, however, is even more worrisome. This view seeks to break free of the constraints of res communis, which a decade ago Listner (2005) described as “restrictive and suffocating.” But these constraints have been important for maintaining stability, safety, and security in outer space—enabling while also restricting competition—so that it can continue to be used for peaceful purposes by all. Stability and security may quickly collapse in the face of a race for precious resources.
In the long run, a Wild West approach to resource mining in space isn’t good for anyone. Governance isn’t as exciting as the idea of snagging an asteroid. But it’s critical for creating a transparent, predictable, sustainable, and fair operating environment. Countries like Canada should lead this effort and eschew the short-term logic of “act now, decide later.”
Babcock, Jonathan. 2015. Encouraging private investment in space: does the current space law regime have to be changed? (part 1). The Space Review, January 5.
Buchan, Kit. 2016. Expert debate: Should there be a space race to mine asteroids? The Guardian, February 15.
Byers, Michael. 2016. Why Canada risks losing out on minerals in space. The Globe and Mail, February 20.
CBC News. 2015. U.S. space-mining law seen leading to possible treaty violations. November 27.
Clark, Liat. 2013. Naveen Jain: we’ll be honeymooning on the Moon before you know it. Wired.co.uk, October 31.
Day, Dwayne. 2015. The helium-3 incantation. The Space Review, September 23.
Hewitt, John. 2015. China is going to mine the Moon for helium-3 fusion fuel. ExtremeTech, January 26.
Lex-Warrier, The. 2015. Res communis and res nullius. April 8.
Listner, Michael. 2015. Section 51303: The oceans are not the equal to outer space. Space Thoughts, December 11.
_____. 2005. It’s time to rethink international space law. The Space Review, May 31.
Luxembourg, Government of. 2016. Luxembourg to launch framework to support the future use of space resources. February 3.
Minter, Adam. 2014. The asteroid-mining race begins. Bloomberg View, September 8.
Oduntan, Gbenga. 2015. Who owns space? US asteroid-mining act is dangerous and potentially illegal. The Conversation US, November 25.
Riederer, Rachel. 2014. Silicon Valley says space mining is awesome and will change life on Earth. That’s only half right. New Republic, May 19.
Wall, Mike. 2015. New space mining legislation is “history in the making.”
White, Wayne. 2014. The Space Pioneer Act. The Space Review, October 27.