Establishing a legal framework for property rights to natural resources in outer space.

• Author: Coffey, Sarah

This Note addresses the need for a stable legal framework to form a workable system that encourages the responsible exploration and exploitation of resources from celestial bodies. Nations and private companies are eager to mine the moon because of its potential for commercial energy sources. However, without a stable legal framework, nations and companies are unlikely to fund such expensive mining operations. This Note analyzes proposals for a new system of rules to govern the mining and use of outer space resources, and concludes by proposing a new framework that encourages exploration and mining while benefiting mankind as a whole.

TABLE OF CONTENTS INTRODUCTION I LUNAR MINING A. Helium-3 B. Missions to the Moon II. TREATIES A. The Outer Space Treaty B. The Moon Agreement III. ANALOGOUS SITUATIONS A. The Law of the Sea B. Antarctic Treaty IV. PROPOSALS A. International Regime B. Credit System C. Unlimited Ownership D. International Space Station Model IV. A NEW PROPOSAL CONCLUSION INTRODUCTION

When the first space treaty entered into force in 1967, space exploration was in its infancy. Only ten years had passed since Russia launched the first satellite into space, and only six years had passed since the first human orbited the Earth. Man's first landing on the moon was still two years away. In the years since, there have been major developments in the exploration and use of space. Numerous countries have launched humans into space, nations have worked together to establish an international space station, and private companies have become important players in the field. Plans for the future are even more ambitious. Five nations have plans to go to the moon by 2020, and the United States plans to establish a permanently staffed base on the moon by 2024. (1) Many of these missions plan to exploit resources from space for use during the missions and for broader use back on Earth. Despite these developments, few new space treaties have emerged since the Outer Space Treaty of 1967, (2) and even fewer have been widely signed and ratified. Since the purpose of the Outer Space Treaty was to lay down only broad rules and principles, many specific issues in space law cannot be clearly resolved just by looking to that treaty.

One issue that has been widely debated, and for which there is no clear legal framework, is the mining of celestial bodies. The moon, Mars, and other celestial bodies contain resources that are scarce or non-existent on Earth and which could have immense value. One example is helium-3, a substance common on the moon but exceedingly scarce on Earth. (3) Helium3 has better potential for providing clean, efficient energy than any other source currently known on Earth. (4) Nations and private companies are eager to mine this substance for use on Earth and in space. Without a stable legal framework in which legal rights and responsibilities are clearly outlined, however, these aspirations may not come to fruition. Nations and companies are unlikely to fund such expensive mining operations until they are assured that they will have a legal claim to what they extract.

This Note addresses the need for a stable legal framework to form a workable system that encourages the responsible exploration and exploitation of resources from celestial bodies while benefiting humanity as a whole. While this Note advocates that such a system should be applied to all celestial bodies, the examples in this Note focus on the moon--the only celestial body on which mining efforts are likely to commence in the near future. Part I addresses the potential uses of helium-3 and current plans to go to the moon. Part II discusses relevant space treaties currently in place, how the treaties address property rights in space, and what aspects of property rights are left unclear. Part III addresses international mining treaties governing the high seas and Antarctica and how they can provide guidance in forming a mining agreement for outer space. Part IV analyzes ideas and proposals for a new system of rules to govern the mining and use of outer space resources. Finally, Part V proposes a framework for governing the mining and use of resources derived from outer space that encourages exploration and mining while benefiting mankind as a whole.

1. LUNAR MINING

   Space mining may seem like a distant prospect that presently does not require the creation of a special legal framework. Valuable resources found in outer space, however, have generated an intense interest in planning expeditions to exploit those resources. Though the cost of such an expedition would be high, the payoff in commercial quantities of natural resources nonetheless makes it an appealing prospect. For example, a metallic asteroid only a kilometer in size would provide one billion tons of iron, two hundred million tons of nickel, ten million tons of cobalt, and twenty-thousand tons of platinum, with a net market value of about one trillion U.S. dollars. (5) The first mining expeditions in outer space will likely not be for minerals such as these that are commonly available on Earth, however. Rather, the cost and risk of a space mining expedition will likely be justified initially by the prospect of obtaining an exciting new potential energy source that is exceedingly rare on Earth: helium-3.

   1. Helium-3

      It is well known that on Earth, the supply of fossil fuels is limited and their extraction and use harms the environment. (6) Researchers are looking elsewhere for clean, efficient new energy sources. One that shows great promise is isotope helium-3, which in fusion reaction can create an ultra-efficient, non-radioactive, clean source of energy. (7) Only trace amounts of helium-3 have been found on Earth, however--not nearly enough to generate commercial power. (8) Only the moon has the amounts necessary for commercial use. (9) In fusion reaction, the moon's estimated helium-3 resources could produce ten times as much energy as is contained in the Earth's recoverable coal, oil, and gas combined. (10)

      The mining operation could be a significant undertaking. Even though helium-3 is much more abundant on the moon than on Earth, it only found in quantities of about twenty-five parts per billion on the lunar surface. (11) While hundreds of millions of tons of lunar soil must be mined to extract one ton of helium-3, only a very small amount of helium-3 is needed to create a vast amount of power in fusion reaction, so much so that a single ounce of helium-3 is valued at $40,000. (12)

      Some critics argue, though, that helium-3 is not a feasible option using standard reactors. (13) Currently there is only one helium-3 fusion reactor in the world. (14) It is a small scale, basketball-sized reactor located at the Fusion Technology Institute at University of Wisconsin--Madison, and not nearly large enough to produce commercial power. (15) The reactor currently consumes more power than it produces, but the institute's work has shown that helium-3 fusion reaction is possible. (16) For the past fifty years, fusion researchers have been trying to reach the break-even point at which a reactor produces more energy than it consumes, and it seems the break-even point is now in sight. (17) The eight billion dollar International Thermonuclear Experimental Reactor currently under construction in France is widely regarded as the last step before the design of commercial fusion reactors. (18) Scientist and Apollo 17 astronaut Harrison Schmitt, a champion of lunar mining for helium-3, estimates that it will take ten to fifteen years to develop commercial fusion plant technology. (19)

      Helium-3's incredible potential as an energy source in an efficient reactor coupled with its value--1.4 million dollars per kilogram when compared to the value and energy potential of oil--have made it a source of keen interest among nations and private companies alike. (20) Used in an efficient fusion reactor, helium-3's market value will be one thousand times its weight in gold or platinum, making it the most valuable known raw material in the solar system. (21) As a result, nations and private companies have an intense interest in going to the moon and extracting this valuable resource.

   2. Missions to the Moon

      Currently, at least six nations and numerous private companies have plans to go to the moon in the near future. NASA's Vision for Space Exploration aims to send astronauts back to the moon in 2020 and to establish a permanently staffed base by 2024. (22) While NASA has not stated that the purpose of the mission is to mine helium-3, it has placed helium-3 mining advocates in influential positions. (23) Additionally, NASA's published Lunar Exploration Objectives include using lunar resources to establish alternative energy sources for Earth, including mining helium-3 from the lunar surface. (24) In this document, NASA describes the value of obtaining helium-3 by saying:

      Utilizing energy produced on the moon can reduce Earth's reliance on fossil fuels (including petroleum, coal, and natural gas) and the associated emission of greenhouse gasses and other pollutants on Earth. This can improve productivity (value per unit cost) associated with activities on the lunar surface; improve the economic sustainability of lunar activities, support permanent human presence and settlement on the moon, and reduce the cost of lunar activities. This activity may encourage investment in space infrastructures by private institutions and others to generate wealth on Earth and on the Moon. (25) Other nations have similar goals. China plans to land an unmanned vehicle on the moon in 2011. (26) Luan Enjie, director of the China National Aerospace Administration, has said that developing and using lunar minerals and energy resources for the sustainable development of human society "is the most important driving force to return to the moon." (27) He singled out the potential use of the moon's helium-3 as a new energy source...