Mining activities have a promising future in the new landscape of space activities. From a legal perspective, the United Nations (UN) Space Treaties remain silent concerning who would own the rights to minerals, gases and water found in outer space. So far, this has not been a problem because most missions have been conducted for scientific goals. However, the development of commer-cial space projects in the field need legal certainty to ensure their viability and to guarantee the rights of future explorers and investors that will extract and commercialize the resources.
At international level, The Hague International Space Resources Governance Working Group, established in 2016, has played a fundamental role by adopting, in November 2019, a set of Building Blocks including various provisions related to space resources activities. The Building Blocks make reference to and clarify some concepts of inter-national space law, that are essentials to support and to coordinate the use of space resources that must be acceptable for all States interested in conducting such activity.
Meanwhile, some States have implemented their own national legislations, such as the United States in 2015, Luxembourg in 2017 and the United Arab Emirates in 2019. These domestic laws do not pave the way for any national appropriation by claim of sovereignty in outer space, including the Moon and other celestial bodies. Nevertheless, they clarify State’s national position on the status of the resources that can be extracted from those celestial bodies and in outer space. They also ensure that private operators can rest assured about their rights on resources they extract when it will be possible to undertake space mining programmes. Furthermore, the legislations establish the regulations for the authorization and the supervision of private space exploration missions, including both exploration and utilization of space resources.
The main objective is to facilitate commercial exploration and extraction of space resources in accordance with international law, in particular by taking into account the provisions of the 1967 Outer Space Treaty, namely the principle of freedom of exploration and use (Article I) and the principle of non-appropriation which confers to outer space the status of res communis omnium (Article II); as well as the Article 11.1 of the 1979 Moon Agreement which stresses that “the Moon and its natural resources are the common heritage of mankind”, and Article 11.5.
Space mining activities are expected to become viable in the near future with the progress of commercial business plans. In this context, the implementation of national legislation is an important step forward for regulating the activity. Nevertheless, the conditions for the exploitation of mineral resources will have to be determined through an appropriate international agreement discussed within multilateral forums.