In considering the concept of “space resources,” the Outer Space Treaty offers internal contradiction. First, Article I indicates that space, including the Moon and other celestial bodies, shall be free for exploration and use. However, Article II constrains use by stating that space, again, including the Moon and other celestial bodies, is not subject to national appropriation. Thus, while States and their nationals are free to use space, it cannot be subject to territorial or proprietary claims. While some argue that the non-appropriation principle precludes space resource utilization, this view is challenged by the Moon Agreement whose Parties clearly anticipated space resource utilization by agreeing to establish a regime to govern such use. Moreover, the no appropriation drafters of the Moon Agreement found the need to state explicitly, in Article XI(5) that natural resources “in place” may not become property of any State, nongovernmental entity or natural person – a distinction not made in the more widely-ratified Outer Space Treaty.
Thus, the legal concept of “property” bedevils engineers and entrepreneurs with grand ideas of using space resources:
1) in situ, to among other things build habitat and extract water for propellant and consumption; and 2) to supplant the Earth’s more meager supplies of rare elements. Yet it need not. Common sense suggests that while some may disagree with the Moon Agreement’s characterization of space as the “common heritage of humankind,” it is incontrovertible that a governance structure must be developed to support peaceful and sustainable space resource utilization.
It is equally indisputable that this structure must be arrived at multilaterally. While ideally, such multilateral discussions would take place within the United Nations Committee on the Peaceful Uses of Outer Space, reality imposes two very real concerns: first, the consensus driven process take time we may not have; and second, the execution of space activities is no longer reserved for States – indeed many private entities are ahead of many States in terms of technological capability. It is vital to engage these nonstate parties in the discussion of resource utilization governance as they may well be the first to demonstrate mining capabilities. Equally important is the need to develop a flexible and adaptive regime recognizing, for example, that lunar resources, which are finite, require different considerations than asteroid resources.
This discussion must commence now. It’s time to put philosophical arguments aside and use common sense to support sustainable space resource utilization.