11 Jul Space Resource Discussions in the UN Committee on the Peaceful Uses of Outer Space
[Valerie Oosterveld is a Professor at the University of Western Ontario (Western University) Faculty of Law in Canada and a faculty member with her university’s Institute for Earth and Space Exploration, also known as Western Space. Anne Campbell is a recent graduate of Western University and a current Western Space summer intern.]
Plans for the extraction of water and minerals in outer space – particularly on the Moon – are developing faster than international law is evolving to address this reality.
As a result, the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) held informal consultations during its recent 2021 annual session to consider the theme of ‘exploration, exploitation and utilization of space resources’.
COPUOS was established in 1959 to govern the peaceful exploration and use of space for the benefit of humanity. In 1961, COPUOS’ Legal Subcommittee was formed to meet annually for two weeks to discuss legal questions related to the exploration and use of outer space.
A Growing Legal Focus on Space Resources
The COPUOS Legal Subcommittee discussions on space resources come at a pivotal moment: a number of spacefaring countries and private entities are well-advanced in their plans for Moon missions – plans which include in situ space resource utilization, such as the extraction and use of water and minerals from the Moon. For example, the US-led Artemis Missions plan to utilize space resources (see Section 10 of the Artemis Accords), and its partners – at present, Australia, Brazil, Canada, Italy, Japan, Luxembourg, New Zealand, the Republic of Korea, Ukraine, the United Arab Emirates, and the United Kingdom – will be involved in these activities. China and Russia also have recently announced joint plans for space resource utilization. In 2020, China’s Chang’e-5 venture led a sampling and return exploration mission to the northwest of the nearside of the Moon as a part of China’s Lunar Exploration Program. India and the European Union also intend to send missions to the Moon within the next decade.
Despite the growing State focus on the exploration, exploitation and use of space resources, there is currently no dedicated international legal framework governing space resource activities. The 1967 Outer Space Treaty (OST) creates a basic framework for international space law, including two key principles: 1) states have the right to freely explore and use space (including the Moon), the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, and there shall be free access to all areas of celestial bodies (Article I); and 2) outer space, including the Moon, “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” (Article II).
However, the OST does not explicitly address space resources. This creates some ambiguity as to the legal parameters governing space resource extraction, use and ownership. For example, states disagree on the answers to fundamental questions, such as:
- Can states and private entities gain property rights in extracted space resources, given the non-appropriation principle?
- Can states make claims to areas containing space resources on the Moon and elsewhere and, if so, what are the temporal and geographical limits of such claims?
- How should claims to space resources be coordinated and how should disputes over claims be settled?
- What international environmental law applies to space resource extraction, and are additional legal norms required to ensure that space resource extraction is conducted sustainably?
- How can the interests of space resource-collecting states be balanced with the interests of non-spacefaring countries (and interested groups, such as Indigenous peoples with beliefs about the Moon and outer space)?
In response to this lack of clarity under international law, and in a bid to support the private space sector, the United States, Luxembourg, the United Arab Emirates and Japan have drafted national legislation regarding the exploration, exploitation and use of space resources.
Plans by spacefaring states for space resource utilization, and the presence of ambiguities in international space law, led to calls for action within COPUOS to address those gaps.
The 2021 COPUOS Legal Subcommittee Discussions
The sixtieth session of the COPUOS Legal Subcommittee took place virtually between 31 May – 11 June 2021.
In 2019, the Legal Subcommittee agreed to scheduled informal consultations on “potential legal models for activities in exploration, exploitation and utilization of space resources” to take place at the 2020 session. However, that session was cancelled due to COVID-19. The informal consultations were rescheduled to the 2021 Legal Subcommittee.
The 2021 informal consultations were informed by a number of working papers, conference room papers and statements. Proposals submitted by China, the Russian Federation and Austria, Belgium, Czech Republic, Finland, Germany, Greece, Poland, Portugal, Romania, Slovakia and Spain all supported the creation of a working group of the Legal Subcommittee tasked with considering the issue of space resources, but with different proposed areas of focus and outcomes.
For example, Austria et al. proposed that, within five years, the working group would submit to the Legal Subcommittee: 1) principles and practical measures for space resources activities on celestial bodies, for possible adoption by the UN General Assembly in a dedicated resolution; and 2) a report on the legal aspects of space resources activities and recommendations for further work by the Legal Subcommittee.
Russia proposed that the working group aim to develop principles and rules for the regulation of activities on exploration, exploitation and utilization of space resources, which could become elements of a new international treaty in the future.
China proposed that the working group focus on creating a draft report through a five year process: stocktaking/information collection in 2022, norm-mapping of existing space law on space resources in 2023, design the structure for the final report in 2024, draft the report in 2025, and finalize the draft report, in coordination with COPUOS’ Scientific and Technical Subcommittee, for submission to COPUOS in 2026.
Countries also made oral statements, demonstrating widespread support for the establishment of a working group on space resources, but with differing levels of enthusiasm, and differences of opinion on its aims and outcomes. For example, the United States stated that “the Outer Space Treaty does not provide a comprehensive international regime for space resource utilization activities. At this stage, the United States sees neither a need nor a practical basis to create such a regime.” Stressing the early stage of space resource use, the US indicated that the time is right to establish a working group, “so long as we can reach consensus on a pragmatic work plan that reflects the early stage of these efforts.” Another example is Canada’s response to the Austria et al. proposal, indicating that “the scope is too ambitious for the 5-year mandate” and that “it would be more manageable to focus on achieving consensus on a set of principles within its 5-year term.”
A second theme that emerged from the statements was a call by developing countries for equitable access to space resources. This was noted by the G77+China and by Indonesia “so that developing countries are not left behind by spacefaring countries”.
A third theme of the Legal Subcommittee discussions was on the space environment. The Ukraine stated that the working group should aim to indicate “norms of sustainable utilization of the exhaustible resources, avoidance of contamination and causing irreversible changes of the environment of celestial bodies”. France and New Zealand also expressed concern about the preservation of the environment, with New Zealand commenting, “the existing rules do not include any explicit requirements related to the conservation and long-term management of space resources, sustainability and the space environment.”
A fourth theme that was evident in the statements by some countries was that the use of space resources is already legal, and that future exploration, exploitation and utilization of space resources was both required to advance humanity’s space knowledge, and inevitable. According to the United States, “truly substantial increases in human and robotic presence in the solar system will require utilizing resources already located outside of Earth’s gravity well”. In one of the more detailed statements during the informal consultations, Canada stated:
As space agencies around the world work together to promote coordinated efforts in human and robotic space exploration on and around the Moon and Mars, we know that key resources will be needed to meet the objectives of these deep-space exploration missions. These resources, including water, oxygen, propellant, and materials for life support and infrastructure will becomes increasingly complex, costly, and risky to obtain from Earth, so we know we will need to conduct in-situ space resource utilization.
A final theme that emerged from the statements made during the informal consultations was that the discussions on the use of space resources were not only legal in nature, they were also scientific and technical, and part of the larger context of human activities in space. Thus, a number of countries – including Thailand – called for coordination between the Legal Subcommittee’s working group and the Scientific and Technical Subcommittee, and contextualization of the space resources discussion. For example, Canada stated: “by focusing only on space resources we will not account for the larger context in which these activities will take place, namely potential human settlements, scientific missions, rover operations, and other such missions. Studying resource use divorced from the context in which it will arise could inadvertently lead to undesirable consequences for these broader activities.”
A New COPUOS Legal Subcommittee Working Group
After eight rounds of informal consultations, the Legal Subcommittee decided “to establish, under a five-year workplan, a working group” focused on “potential legal models for activities in exploration, exploitation and utilization” of space resources. However, the mandate, terms of reference and methods of work will continue to be discussed during the intersessional period, led by the working group Chair, Andrzej Misztal (Poland), and the Vice-Chair, Steven Freeland (Australia).
The working group intends to meet at the sixty-fourth session of COPUOS (25 August – 3 September 2021).
The step of creating a working group is positive, given the urgent need for international guidance on space resource extraction and use in the face of fast-developing plans by numerous states to conduct Moon missions in the near-to-medium term. At the same time, there are significant differences that will need to be bridged in order to come up with a realistic, useful, and forward-looking workplan and outcome.
The next year presents a significant opportunity for legal experts to engage with the issue of space resources. The Third Revised Co-Moderators’ Proposal indicates that, in 2022, the working group plans to identify “appropriate means to include the expertise and views of academia, civil society, technical experts, institutional and private actors as well as means of coordination with the Scientific and Technical Subcommittee”. Therefore, the upcoming consultations will determine which voices are included within this important discussion for years to come.