COMMERCIALIZATION OF RESOURCE EXTRACTION THROUGHOUT THE FINAL FRONTIER & THE PARALLEL TO TERRESTRIAL PROCEDURES.

• Author: Ziga, Jonathan P.

ABSTRACT

How will international law advance with the increasing desire to explore and profit from commercial activities in outer space? Commercialization of mining procedures on extraterrestrial bodies has the potential to be a proverbial well of income, but international law is seemingly ill-equipped to handle the demands of nations looking to profit from this new endeavor. Fortunately for those nations and private entities looking to venture into the final frontier, there may be a solution to the resource extraction dilemma located right here on Earth. Extraterrestrial mining and exploration is facing a Grotian Moment in international law, where analogizing extraterrestrial mining to seabed mining in international waters through the United Nations Convention on the Law of the Sea is the best approach to creating an acceptable long-term solution to resource extraction in outer space.

TABLE OF CONTENTS ABSTRACT TABLE OF CONTENTS INTRODUCTION I. FACTUAL BACKGROUND & HISTORY A. Evolution of Space Law B. Space Law for the Future & the Vision for Exploration C. Background of Seabed Mining II. Difficulties with Extraterrestrial Resource Extraction Under Current Theories A. Aboriginal Title B. Imperialistic Title III. AN UNSEEN SOLUTION: RELATING EXTRATERRESTRIAL RESOURCE MINING TO SEABED MINING ON EARTH CONCLUSION INTRODUCTION

Why does resource extraction in space matter? One important reason is that many people believe that the expansion of individual wealth into the trillions of dollars will be possible only after asteroid mining operations become stable. (1) Therefore, extraterrestrial mining, specifically the mining of asteroids, will likely become the next world-altering commercial activity. These M-type asteroids are the asteroids that would be most profitable when mined for their resources, as they are composed of precious metals such as nickel, iridium, palladium, platinum, gold, magnesium, osmium, ruthenium, and rhodium in copious amounts. (2)

Because these extraction operations are conducted on extraterrestrial bodies, precedents in international law on Earth may be insufficient to effectively govern operations in outer space. Fortunately, the United Nations has already constructed a small body of law for the governance of states, nations, and private entities in outer space, (3) hereinafter referred to as "space law." Space law is the body of law governing space-related activities including, but not limited to, mining operations, resource extraction, satellite use, research activities, and spaceflight. (4) Space law comprises a variety of international agreements, treaties, conventions, and United Nations General Assembly resolutions as well as rules and regulations of international organizations. (5)

This Note argues that there must be a system in place to grant property rights to States that are extracting resources on extraterrestrial bodies. Additionally, this Note argues that countries should apply legal customs traditionally used in seabed mineral extraction from areas located in international waters as an analogous process to resource extraction operations on these extraterrestrial bodies. Exploitation of seabed minerals in international waters may only be carried out under a contract with an international authority and any declaration would be subject to its rules, regulations, and procedures. (6) This principle could be drawn upon to apply to extraterrestrial bodies; it is based on the United Nations Convention on the Law of the Sea ("UNCLOS"), (7) where contracts can be issued to both public and private mining enterprises, provided they are sponsored by a State party to UNCLOS and meet certain standards of technological and financial capacity. (8) The economic advantages of extraterrestrial mining under an internationally regulated scheme--much like seabed mining--should be manifested in the form of royalties paid to an international governing body and should be shared for the "benefit of mankind as a whole" with particular emphasis on the developing countries that similarly lack the technology and capital to carry out seabed mining. (9)

The obvious starting point is delving into the history of space law to gain an understanding of the customary international law and background from the 1960s. Then, an explanation of seabed mining is required to set the stage for a parallel between the similarity of international seabed mining and resource extraction on extraterrestrial objects. The solution for international law is for the United Nations to create an independent organization similar to the International Seabed Authority (the "Authority"). (10) This new and necessary international committee would mirror the International Seabed Authority's processes for granting exploratory and extraction grants, where the United Nations can delegate the authority to grant extraterrestrial exploratory and extraction grants to states and private entities.

1. FACTUAL BACKGROUND & HISTORY

   1. Evolution of Space Law

      The 1960s were a decade filled with unprecedented breakthroughs related to space exploration, encompassing the space race, the first human in outer space, and the Moon landing. (11) The Cold War, along with the resulting tension between the Soviet Union and United States, motivated both countries to become more technologically advanced and lay claim to the final frontier. (12) Due to the political pressure exerted by the United States and Russia during the Cold War, there was a growing concern in the international community that outer space might become another field for intense rivalries between the superpowers or would be left for exploitation by a limited number of countries with the necessary resources. (13)

      Because of this, the United Nations realized that there was a need for international cooperation to explore outer space peacefully and effectively for the benefit of mankind. (14) In response, the Committee on the Peaceful Uses of Outer Space ("COPUOS") was created by the United Nations' General Assembly in 1959 for the purpose of governing the exploration and use of space for peace, security, and development, with the intent to benefit mankind. (15) COPUOS was tasked with promoting and analyzing the use of space, along with conducting research on any potential legal or research issues. (16)

      With the help of COPUOS's research, the United Nations then promulgated the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, (17) (the "Outer Space Treaty") which was exhibited for signatures on January 27, 1967 in Moscow, London, and Washington D.C. (18) This treaty was well received, garnering 64 signatures on the day it was presented to the world, (19) with 26 more countries signing the document before 1968. (20) The Outer Space Treaty was adopted on October 10, 1967 (21) and is the foundation for current international space law. (22) The document is only 17 articles long and manages to exist as the most important multinational agreement regarding international space law. (23) An even greater international showing of support has come in recent years as the Outer Space Treaty has been ratified by over 100 states and is ratified by every state capable of space exploration. (24) While the Outer Space Treaty is the most important multinational agreement in international space law, it is not the sole governing document for the entire sector. There are four other treaties that make up international space law: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, (25) the Convention on Registration of Objects Launched into Outer Space, (26) the Convention on International Liability for Damage Caused by Space Objects, (27) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. (28) Essentially, this is the totality of current international space law.

   2. Space Law for the Future & the Vision for Exploration

      With the Outer Space Treaty surviving over 50 years and currently being the primary basis for outer space law, there may be an inadequacy for future regulatory schemes without some sort of update to either the Outer Space Treaty or international regulatory framework. In May 2019, Jeff Bezos (29) gave a presentation on his, and Blue Origin's, (30) vision for humanity's future in space. (31) His lofty vision consists of a series of artificial settlements in orbit that would be a suitable habitat for as many as 1 million people per settlement. (32) With billionaires such as Elon Musk, (33) Jeff Bezos, Richard Branson, (34) and others travelling into space for personal and business experiences, as well as an opportunity to benefit humanity, (35) the interest in expansion into space is undoubtedly growing. (36) Companies are already building models for space hotels, and soon there will be an influx of commercial entities landing on the Moon and extracting resources for profit. (37) Scientific discoveries in space are also continuing into the 21st century. In October 2020, the National Aeronautics and Space Administration ("NASA") discovered water on the Moon, raising the public's expectations in the idea that the Moon could be used as a future base of operations for space exploration or a potential colony. (38) The current regulatory framework assumes that space will be managed by states, not private entities, and there are gaps that need to be filled to allow for advancement in space. (39)

      One important provision of the Outer Space Treaty states that nations must be held responsible for their actions in space, including those actions resulting from non-governmental activities. (40) This clause essentially means that countries must oversee whatever the private sector does in space. Furthermore, it implies that countries can be held liable by the United Nations Committee on the Peaceful Uses of Outer Space...