Sustainable Development of Outer Space

Aaron Boley & Michael Byers

Discussion Paper, Outer Space Institute & Peter Wall Institute, March 10-12, 2020

Introduction

We are entering a new era of Space use that will likely see: (1) A sustained presence on the Moon through the planned multinational Lunar Gateway; (2) Mining on the Moon, on near-Earth asteroids, and eventually on Mars; (3) An increasing number of commercial actors capable of accessing and using Space.

The speed of development is reflected in two missions to retrieve material from asteroids:

Hayabusa2 reached Ryugu in April 2018. After 17 months of scientific activities, including the collection of samples from both the asteroid’s surface and its interior, the Japanese Space Agency robotic spacecraft began a journey back to Earth that is expected to conclude this December. The samples from Ryugu could contain water and other minerals helpful to scientists studying the origins of Earth and the Solar System.

OSIRIS-REx reached Bennu in December 2018. After collecting a sample, the NASA robotic spacecraft will return to Earth in September 2023. As with Ryugu, the sample from Bennu could help scientists better understand the formation of our planet. Bennu is also a “high-risk” asteroid that could potentially strike Earth in the 22nd century; its physical and chemical properties could thus be important for impact avoidance or mitigation efforts.1

Bennu and Ryugu are further interesting because they contain ice and water-bearing minerals that could be used to produce rocket fuel in Space. Indeed, the roadmaps of major national Space agencies emphasize the need for Space mining to realize continuous deep Space activities.2 Private companies are also interested, since even a small asteroid could be worth trillions of dollars, based on the cost of the alternative, i.e. lifting fuel out of Earth’s heavy gravity.3

1 Lonnie Shekhtman (December 6, 2018) Planetary Defense: The Bennu Experiment.” NASA: Jet Propulsion Laboratory. Available: https://www.jpl.nasa.gov/news/news.php?feature=72992 International Space Exploration Coordination Group, The Global Exploration Roadmap, January 2018. Available: https://www.nasa.gov/sites/default/files/atoms/files/ger_2018_small_mobile.pdf 3 Mike Wall (March 19, 2019). “Water on Asteroid Bennu Could Mean ‘Pay Dirt’ for Space Miners.” Space.com. Available: https://www.space.com/asteroid-bennu-water-space-mining-osiris-rex.html

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Commercial Space activity (“NewSpace”) is expanding quickly. For example, a single US company – SpaceX – is launching 60 satellites at a time, roughly once every two weeks, as it builds a “mega-constellation” of 12,000 or more communications satellites in low Earth orbit.

The existing regime for Space governance is poorly equipped for these changes. For example, the 1967 Outer Space Treaty prohibits the “national appropriation of the Moon and other celestial bodies” but does not say anything about the extraction of resources. The resulting ambiguity has left international lawyers divided as to whether commercial Space mining is permitted.

In 2015, the US Commercial Space Act accorded US citizens the right, under US law, to own resources they extract in Space. In 2017, Luxembourg adopted similar legislation and offered financial incentives to attract Space mining companies to incorporate there. These developments may be particularly relevant to Canada, which is home to the majority of the world’s mining companies but has yet to take a position on the legality of commercial Space mining.

Part of the concern is that the desire to stimulate commercial Space activity could blind national governments to the need for clear international rules. What will happen when Space mining ventures emerge in multiple states? Will national legislation differ from state to state, and with what consequence? Will “flag of convenience” states emerge, seeking to attract business through lax regulatory regimes and oversight? These concerns are real and imminent: A private Israeli foundation recently won the Google Moonshot Award by reaching the lunar surface with a small spacecraft. SpaceX is building Starship, a 50 metre-tall, 9 metre-wide fully-reusable rocket that will be capable of flying to the Moon, landing there, and then returning to Earth. Then there is the Lunar Gateway, a US-led initiative to build a Space station in a near-rectilinear halo orbit about the Moon that will facilitate lunar orbital and surface operations for both state and commercial actors. Humans are expected to be on the Gateway by 2030, preparing for missions to Mars. And NASA is clear: Resource extraction from the Moon will be mission-critical for sustaining the Gateway, as well as for sustained human presence in cis-lunar Space.

The absence of clear international rules creates serious risks. While Space mining could result in breakthrough sampling of celestial bodies for understanding the Solar System, this will only be possible if unaltered material is made available to the scientific community (i.e., if companies do not adhere to strict proprietary practices). Commercial Space operations are also likely to result in abandoned equipment and other debris, both on celestial bodies and in orbit, which is a particular concern on the Moon and Mars. Asteroid mining, for its part, could give rise to debris streams – mine tailings in Space – that threaten satellites in Earth and lunar orbits as well as activities on the Moon. Last but not least, removing mass from near Earth asteroids will cause their trajectories to change. If Space mining occurred without a careful modelling of the astrodynamics, an Earth impact scenario could inadvertently result.

This document aims to stimulate discussions of these issues without being all-encompassing. It is written to be accessible to readers from a range of backgrounds, including government, industry, international law, environment science, engineering, astronomy, and planetary science.

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1. Celestial Bodies and Meteoroids

This paper is focused on asteroids, the Moon, and Mars. We begin with a brief review of the properties of these bodies, with a focus on those of greatest relevance to the workshop.

1.1. Asteroids

Asteroids are the remnants of the rocky/metallic building blocks of planets (planetesimals). Most asteroids are distributed between the orbits of Mars (about 1.5 au4 from the Sun) and Jupiter (5.2 au) in an area referred to as the Main Belt. About half of the asteroid belt’s mass is concentrated in 1 Ceres, 4 Vest, 2 Pallas, and 10 Hygiea asteroids, with an estimated total mass of about 3.6 x 1021 kg,5 which is about 4-5% of the mass of the Moon.

Asteroids have a range of surface characteristics as determined from spectroscopic observations. They can, through comparisons with meteorites, be divided into taxonomies based on those

characteristics6. Examples include S-type asteroids, which resemble a common class of stony meteorites; M-type asteroids, which resemble nickel-iron meteorites; and C-complex asteroids, which can have a relatively large fraction of carbon and volatiles (e.g., hydrated minerals) on their surfaces, similar to carbonaceous meteorites. Certain types of asteroids (S and C types) contain material that has remained unaltered since their formation7. This material, carrying cosmochemical and environmental information from 4.5 billion years ago, offers unique insight into planet formation.

With the exception of the largest asteroids, the numbers and sizes of the asteroid population have been

strongly influenced by collisions among the asteroids themselves.8 Their orbits are further influenced by gravity from the planets and by non-gravitational forces such as Yarkovsky drift,9 a process by which asymmetric re-radiation of light absorbed from the Sun acts as a low-impulse rocket, slowly moving the asteroids inward or outward (depending on the direction of their rotation). Impacts with meteoroids can also cause asteroids to drift.10 Due to their lower mass, smaller asteroids are more affected by these factors than larger asteroids and therefore tend to drift more. Over time, asteroids can drift into regions that have very strong gravitational

4 An astronomical unit (au) is the semi-major axis of Earth’s orbit and is equivalent to 1.5 x 108 km. Bound orbits (i.e., they go around a central mass) are elliptical, and are characterized by their semi-major axis (half of the long axis of an ellipse), which determines the orbital period. 5 Krasinsky et al. 2002, Icarus, 158, 986 De Meo et al.7 Chondrule paper, review by Sara8 Bottke et al. 2015, “The collisional evolution of the main asteroid belt”, in Asteroids IV.9 Vokrouhlicky et al. 2000, Icarus, 148, 11810 Weigert paper.

: A piece of the meteorite Allende, a carbonaceous chondrite. Meteorites such as this contain once-molten spherules that have had little alteration since formation and incorporation into their parent body. These objects and the metallic inclusions, which are some of the oldest materials that formed in our Solar System, carry cosmochemical and environmental information

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perturbations from planets, causing the orbits to become highly eccentric. Some of these asteroids will evolve to become near-Earth objects (NEOs), many of them through close encounters with Mars. The near-Earth asteroids (NEAs) are thus small samples of the evolved asteroid belt that have been delivered to the near-Earth environment relatively recently11. We will return to NEAs in our discussion of planetary defence.

1.2. The Moon

The Moon is thought to have been formed by a grazing impact between Earth and a Mars-sized object (called Theia)12 based, for example, on the Moon’s low iron content and similarities between Earth’s crust and lunar samples. While the details are still an active area of study, the collisional debris from the encounter would have grown into the Moon. Through tidal evolution, the Moon entered a state in which its rotation is commensurate with its orbit about Earth (called synchronous rotation or “tidal locking”). It has been moving away from Earth since its formation due to angular momentum exchange between Earth’s rotation and the Moon’s orbit. The current Earth-Moon distance is about 380,000 km, although the Moon’s eccentric orbit causes this distance to vary between about 360,000 km and 400,000 km. At these distances, the round-trip light travel time is about 2.5 seconds. This time delay, while short, is one of the motivations for the development of artificial intelligence (AI) to support the Lunar Gateway.

The Moon does not have an atmosphere other than tenuous gas, which is released as a result of vaporization during meteoroid bombardment and solar wind implantation, and it quickly dissipates into Space. It also lacks a global magnetic field—only weak crustal magnetization. As a result of these properties, an abundant flux of small meteoroids and charged particles can make it to the Moon’s surface. This has, over time, pulverized that surface, creating a layer of very fine particulates called regolith. Most of this material is very dry because the surface is extremely old and exists within a vacuum and a strong radiative environment. However, there are some places on the Moon that are permanently shadowed (craters in the polar regions) and this has allowed water ice and hydrated minerals to persist in those locations.

With a mass and radius 1.23% and 27.3% that of Earth, respectively, the lunar surface gravity is 1/6 of Earth’s gravity (1 g).

1.3. Mars

Mars is a small rocky planet orbiting at a distance of 1.52 au from the Sun. It is 10.7% the mass of Earth and 53.2% its radius. The surface gravity is just 38% the gravity on Earth. Mars has a thin atmosphere, with a surface pressure of about 6 mbar (compared with 1000 mbar on Earth). This predominantly CO2 atmosphere is sufficient to mediate surface/atmosphere chemistry, aeolian (wind-borne) processes, and ice migration, although it cannot support sustained liquid water on the surface. The combination of a thin atmosphere and a greater distance from the Sun makes Mars much colder than Earth, with an average temperature of 210 K, or -63o C. Water is present as vapour, frost, permafrost, and ice sheets (at the poles). Subsurface brines occasionally seep out of the crater walls. Periglacial activity (i.e., geology driven by freezing, thawing, and

11 Greenstreet and Gladman 201212 Canup 2004, ARA&A, 42, 441

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sublimation) is ongoing, and glaciers were present in the recent past and are thought to still be active in some areas. Hydrated minerals (e.g., phyllosilicates) are also found on the Martian surface.13

These processes already make Mars an important planet to study to better understand Earth. The planet is made more intriguing by the fact that it once had a denser atmosphere and probably even periods of significant surface water flow, as can be inferred from fluvial structures such as outflow channels and dendritic (i.e. branching) valley networks. While this does not mean that Mars had long-lived surface water, it does suggest that Mars had many of the ingredients thought necessary for life: water, energy, and a stable environment. This has made Mars the principal extraterrestrial target for astrobiology studies, a major science driver for missions to the planet. It also motivates planetary protection procedures, with the aim of preventing unintentional contamination by organisms carried from Earth to Mars by spacecraft.

Two-way communication between Earth and Mars takes between 8 to 42 minutes, due to light travel time, depending on the relative positions of the two planets in their orbits around the Sun. Although the planet has water, sunlight, and an atmosphere, the environment is inhospitable to humans. Its remoteness further complicates human habitation, as well as resource extraction in support of Mars operations. Indeed, the travel time for standard interplanetary transfers is about 8 months, with launch opportunities arising approximately once every two years.

1.4. Meteoroids

Meteoroids are small celestial bodies ranging from approximately a few microns in size (10-6 m) up to small asteroids (boulders), with the upper size being poorly defined. They are cometary dust and pieces of asteroids that have been released into orbit about the Sun due to collisions, surface loss, outgassing, breakups, and similar types of processes. When these objects fall into Earth’s atmosphere and are ablated, they can create streaks of light called meteors. A meteoroid (or a part thereof) that survives entry and falls to the ground is called a meteorite. Very bright meteors are called fireballs or bolides. As with asteroids, smaller meteoroids are much more abundant than larger ones.

There are two basic populations of meteoroids: the sporadic complex and streams.14 The sporadic population sets the meteoroid background flux and is due to a variety of sources. It is the dominant meteoroid population most of the time. The meteoroids in streams originate from a particular parent body (comet or asteroid) and occupy similar orbits. When Earth passes through a stream, we see a meteor shower and the meteoroid flux can exceed the sporadic complex for certain sizes.

Meteoroids entering Earth’s atmosphere have a wide distribution of speeds, ranging between 14 km/s and 74 km/s.15 This is because some meteoroids fall into Earth’s gravitational well, while others move around the Sun in the opposite direction to Earth (retrograde orbit). Due to their high speeds, meteoroids are a potential risk to spacecraft and satellites, with sizes between 100

13 Poulet et al. 2005, Nature, 438, 62314 Moorhead et al. 2019, arXiv:1909.0594715 Moorhead, A. V. 2018, M&PS, 53, 1292

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microns to about 1 cm being the most dangerous due to the combination of mass and abundance. While orbital debris (human-produced material in orbit) poses the greatest risk to spacecraft in low Earth Orbit (LEO), meteoroids pose the greatest risk to spacecraft at altitudes above approximately 4000 km,16 which include global navigation satellite systems (e.g., GPS) and satellites in geostationary orbits, i.e., orbits in which satellites appear to be stationary because they orbit at the same rate as Earth rotates. Geostationary orbits are highly valued locations for communication satellites.

2. Planetary Defence

Planetary defence involves the discovery, characterization, risk assessment, and if necessary, mitigation of potential Earth impactors. Throughout its history, Earth has been struck by the remnants of planetesimals, serving as an (exogenic) geological process. Most impactors are small meteoroids. The larger the impactor, the longer the typical timescale between impact events (although this is a stochastic process, i.e., statistically analysable but still random). Each year, meteoroids with diameters greater than 1 metre enter Earth’s atmosphere, exploding harmlessly with airburst energies of around 1 kiloton of TNT. In 2013, a 17 metre-diameter

meteoroid exploded at an altitude of about 30 km above the Russian city of Chelyabinsk. The consequent airburst had an equivalent energy of about 500 kilotons. It blew out windows, caused minor structural damage to buildings, and sent over 1000 people to hospital, most of them injured by shattered glass after they rushed to windows to observe the bright flash in the sky. Such objects strike Earth on average once every few decades, though rarely over a city. That said, a slightly larger asteroid – just 30 metres or more – could destroy a large city. The 1908 Tunguska airburst, which levelled over 2,000 km2 of Siberian forest, was estimated to be about 50 metres in

diameter. An asteroid with a breadth of 140 metres could devastate an entire region, with events like this expected about once every 30,000 years.

Approximately 22,000 NEAs have been identified so far, with the detection of objects 1 km in diameter or larger being nearly complete. However, only about 30% of objects 140 metres in diameter or larger have been catalogued, with the incompleteness fraction rapidly rising for smaller bodies. A cumulative NEA discover plot is shown in Figure 2.

16 Cooke et al. 2017, 7th European Conference on Space Debris, Vol. 7

Figure 2: NEA discovery plot, cumulative in time. It should be noted that the completeness of catalogued objects drops off rapidly for smaller bodies.

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There are a number of efforts underway to catalogue more NEAs, including the Catalina, Pan-STARRS, and ATLAS surveys, as well as the many telescopes supporting the International Asteroid Warning Network.

Refining the orbital uncertainties of known NEAs and understanding how their orbits evolve is also a primary concern, particularly if they have a small Minimum Orbital Intersection Distance (MOID), i.e., the minimum distance two objects could have in principle, based on their current orbits and without considering the possibility of a strong gravitational interaction between them. Within the next year, about 100 asteroids will come within 15 lunar distances of Earth17 (i.e., 15 times the distance between the Earth and the Moon), with two of these asteroids being greater

than 1 km in diameter. However, the positions and orbits of these asteroids are well known, and none of these “flybys” poses a concern.

If an asteroid on an Earth impact trajectory is discovered, and if there is sufficient time, a deflection attempt might be possible. Deflecting an asteroid involves slightly altering its orbit by perturbing its velocity (often referred to as a Δ v, pronounced “delta-v”). Asteroids, or indeed any orbiting objects, are most efficiently perturbed if the Δ v is applied along or against their orbital

track (as opposed to normal – i.e. perpendicular – to the orbital path). For small perturbations, this can be thought of as a timing perturbation, such that it advances or delays the timing of the close approach and thus allows Earth to be out of the way.

To gain a sense of the magnitude of the Δ v needed for any given deflection, consider an asteroid’s close approach as seen from Earth. Ignoring for the moment the effect of Earth’s gravity, we can imagine a plane that goes through the Earth and is normal to the asteroid’s trajectory. This is called the B-plane (body plane). If we want to move the location of the asteroid’s closest approach on that plane by 1 Earth radius, the necessary Δ v perturbation along or against track can be estimated by

Δ v=3.5 cm / sT yr

,

where T yr is the “lead time”, i.e., the time between the closest approach and when the Δ v is applied. For comparison, the orbital speed for something going around the Sun at 1 au is about 30 km/s. The longer the lead time, the greater the effect that small perturbation will have. And the shorter the lead time, the greater the perturbation needed to avoid an Earth impact.18 The

17 https://cneos.jpl.nasa.gov/ca/, accessed 23 Feb 2020

. B-plane showing simulation results of different deflection scenarios for the hypothetical impactor 2019 PDC. The B-plane coordinates are in units of Earth radii. The solid circle represents the cross section of Earth and the dashed line is Earth’s effective cross section when including gravitational focusing. Each point represents where the hypothetical 2019 PDC passed through the B-plane – if the point is within the dashed circle, then the impactor would have hit Earth. The central point represents no deflection attempt. Starting from the highest point moving downward,

-10, -8, -6, -4, -2, 0, 2, 4, 6, was applied 7.7 yr before the potential

impact, with the results roughly consistent with the

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Center for NEO Studies periodically releases impact scenarios for tabletop exercises,19 with the most recent hypothetical impactor called asteroid 2019 PDC. Figure 3 shows the results of executing different Δ v’s (each case only uses one Δ v) along or against track 7.7 years before the hypothetical impact.

At the moment, the two most feasible methods for causing a perturbation on an asteroid are kinetic impactors and nuclear explosive devices (NEDs). Mass-drivers offer a third method, while other methods such as gravity tractors20 might be possible but will not be discussed here.

2.1. Kinetic impactors

In July 2021, NASA will send a spacecraft to an asteroid to test whether it can be deflected.21 The DART (Double Asteroid Redirection Test) mission will target Didymos, a binary asteroid system consisting of a large asteroid accompanied by a “moonlet”: a smaller asteroid that orbits the larger one. The moonlet provides an ideal target because a change in its orbit around the larger asteroid can be detected by observing periodic variations in the light curve of the larger asteroid caused by the passage of the moonlet across and behind its face. These variations are easier to detect and measure than a change in the orbit of a single asteroid around the Sun. At the same time, the moonlet is large enough, at approximately 160 metres, to pose a considerable threat were it on an Earth impact trajectory.

Deflection works by slamming a spacecraft into an asteroid at high speed, causing sufficient momentum transfer (both from the spacecraft and the ejection of material during cratering) to provide the desired Δ v. Multiple impactors could be used, if the necessary Δ v is large or there is risk that a single large impact would fragment the asteroid.

2.2. Nuclear explosive devices

Nuclear explosive devices (NEDs) could be used to deflect an asteroid by vaporizing its regolith, allowing the free expansion of the vapour to act like rocket exhaust and move the asteroid. More dramatically, and probably more dangerously, NEDs could be used to fragment the asteroid. Part of the danger here concerns the fact that, if some of the fragments remained on course to impact Earth, they would result in multiple airbursts, and therefore potentially increase the scale of destruction. NEDs are also problematic for legal and security reasons, as will be discussed below.

2.3. Mass-drivers

18 The Center for NEO Studies has released a “deflection app” to demonstrate some of these features. Available at: https://cneos.jpl.nasa.gov/nda/.19 https://cneos.jpl.nasa.gov/pd/cs/20 Lu and Love 2005, Nature, 438, 17721 A. Cheng et al. 2018. “AIDA DART asteroid deflection test: Planetary defense and scienceobjectives”. 157 Planetary and Space Science 27-35.

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Any mass loss from an asteroid will provide a rocket reaction and alter its trajectory. Mass loss can occur naturally due to surface processes, or it could result from the purposeful ejection of material. Purposeful ejections represent a class of asteroid deflection techniques called “mass-drivers”,22 whereby a spacecraft that has landed on the asteroid’s surface uses the asteroid’s mass as fuel to perturb the orbit.

3. Space Mining & International Law 3.1. 1969 Outer Space Treaty

The right to extract, own and then sell the extracted resources is essential to commercial Space mining. However, it is not clear whether this right is available under existing international law. Article 2 of the 1969 Outer Space Treaty is central to the question of whether commercial, non-state actors can own extracted resources. It stipulates that “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Article 2 makes no reference to non-state actors, an omission that has enabled several states and some legal scholars to argue that it does not apply to the commercial extraction of resources. The argument, in short, is that resources on the Moon, Mars, or an asteroid are analogous to fish on the high seas, which can be caught and sold even though the water column beyond 200 nautical miles from shore is not subject to national appropriation. The counterargument, however, is that Article 2 must be read in accordance with the international rules on treaty interpretation.

3.1.1. Treaty interpretation

The international rules on treaty interpretation are codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties:

Article 31 - General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:(a) any agreement relating to the treaty which was made between all the parties in

connexion with the conclusion of the treaty;(b) any instrument which was made by one or more parties in connexion with the

conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

22 Friedman et al. 2004, Planetary Defence Conference 2004

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(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Essentially, the counterargument against commercial space mining runs as follows:

First, that the “ordinary meaning” of “national” includes companies incorporated in a state, and/or licensed by it, and/or using spacecraft registered by it; and that the ordinary meaning of “appropriation” includes the appropriation of all or part of a celestial body. The latter part of Article 2 is important here, stating that appropriation includes “by claim of sovereignty, by means of use or occupation, or by any other means.” (emphasis added)

Article 6 of the Outer Space Treaty is also relevant, since it reads, in part:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

Second, that the context of Article 2, namely the rest of the treaty including its preamble, supports this interpretation. For example, the preamble reads in part:

The States Parties to this Treaty, …Believing that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development, …

Similarly, the first part of Article 1 reads:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Third, that the same elements of the Outer Space Treaty show that its “object and purpose” is the res communis omnium, i.e. Space is a “global commons”.

However, proponents of commercial space mining can point to other provisions of the Outer Space Treaty to support their position, most notably the second sentence of Article 1:

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Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

For this reason, subsequent practice is relevant to the interpretation of Article 2. Again, Article 31(3) of the Vienna Convention on the Law of Treaties reads:

There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretation of the

treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the

agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the

parties.

Both sides in the debate point to the 1979 Moon Agreement23 as relevant subsequent practice, with those arguing for a prohibition on commercial space mining considering it a “subsequent agreement between the parties regarding the interpretation of the [Outer Space] treaty or the application of its provisions”, much like the 1967 Rescue Agreement,24 the 1972 Liability Convention,25 and the 1975 Registration Convention.26 In contrast, those arguing for right of commercial space mining point to the failure of the Moon Agreement to attract more than 18 parties—out of the 109 parties to the Outer Space Treaty. But the fact of the matter is, the Moon Agreement would not resolve the debate even if it were widely ratified.

3.2. 1979 Moon Agreement In 1979, the UN General Assembly adopted the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Although it is generally referred to as the Moon Agreement, its drafters were only simplifying the text when they stipulated in Article 1(1) that: “The provisions of this Agreement relating to the moon shall also apply to other celestial bodies

23 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (signed 18 December 1979, entered into force 11 July 1984) (1979) 1363 UNTS 3, available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html 24 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (signed 22 April 1968, entered into force 3 December 1968) https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html 25 Convention on International Liability for Damage Caused by Space Objects (signed 29 March 1972, entered into force 1 September 1972) https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html 26 Convention on Registration of Objects Launched into Outer Space (signed 14 January 1975, entered into force 15 September 1976) https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html

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within the solar system, other than the earth, except in so far as specific legal norms enter into force with respect to any of these celestial bodies.”

The preamble of the Moon Agreement refers explicitly to Space mining: “Bearing in mind the benefits which may be derived from the exploitation of the natural resources of the moon and other celestial bodies.” However, this endorsement of mining is conditioned by Article 4.1:

The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations.

States are allowed to collect samples of minerals and other substances from the Moon and other celestial bodies and use them for scientific purposes, and according to Article 6(2), they may “in the course of scientific investigations also use mineral and other substances of the moon in quantities appropriate for the support of their missions.” According to Article 11 of the Moon Agreement, states as well as “non-governmental” entities may also extract minerals for commercial use, though only within the context of an international regime that has yet to be negotiated:

Article 11

1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.4. States Parties have the right to exploration and use of the moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement.5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United

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Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the moon.7. The main purposes of the international regime to be established shall include:(a) The orderly and safe development of the natural resources of the moon;(b) The rational management of those resources;(c) The expansion of opportunities in the use of those resources;(d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.8. All the activities with respect to the natural resources of the moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement.

Despite being drafted decades before any realistic prospect of Space mining, the Moon Agreement remedies the Outer Space Treaty’s failure to address the issue explicitly. Again, Article 11(3) states: “Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.” Note the use of the word “property” rather than “appropriation”, and even more importantly, the words “in place”. With this more specific language, the Moon Agreement makes clear that the prohibition on “national appropriation” does not include a prohibition on ownership of natural resources once they have been extracted.

However, the Moon Agreement does not create a commercial free-for-all. Again, Article 11(5) requires the creation of “an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon [and other celestial bodies] as such exploitation is about to become feasible.” Notably, the main purposes of the international regime would include establishing “the orderly and safe development” of the natural resources in Space, “the rational management of those resources,” and “an equitable sharing by all States Parties in the benefits derived from those resources”. Space mining would therefore be legally analogous to the mining of the deep seabed under Part XI of the UN Convention on the Law of the Sea, whereby the resources are the “common heritage of mankind” and revenue from mining, whether conducted by states or companies, is shared with less developed states.27

Spacefaring states have never accepted that celestial resources are collective property and require economic distribution among all states; they have thus chosen not to ratify the Moon Agreement.28 Exceptionally, France and India have signed but not ratified the Moon Agreement, and they are therefore bound by Article 18 of the Vienna Convention on the Law of Treaties to “refrain from acts which would defeat the object and purpose” of the Agreement, unless and until they have made their “intention clear not to become a party”. The Netherlands is the sole developed state to have ratified the Moon Agreement.

27 Peterson, “The Use of Analogies in Developing Outer Space Law,” 261-3.28 Tronchetti, Fabio, “The Moon Agreement in the 21st Century: Addressing Its Potential Role in the Era of Commercial Exploitation of the Natural Resources of the Moon and Other Celestial Bodies,” Journal of Space Law 36 (2010): 505, Hein Online.

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3.3. Sales of Moon samples

Sales of Moon samples are considered by some to be legally relevant subsequent practice for the purposes of interpreting Article 2 of the Outer Space Treaty. In 1993, 200mg of Moon material was auctioned at Sotheby’s for US $442,500. The material came from the 101g of lunar material collected by the Soviet Union’s unmanned Luna 16 mission in 1970, and gifted by the Soviet government to the widow of its former space program director Sergei Pavlovich Korolev. In 2017, a bag from the Apollo 11 mission containing traces of Moon dust was auctioned at Sotheby’s for US $1.8 million.29 Proponents of commercial space mining point to the fact that no party to the Outer Space Treaty publicly opposed these sales. However, it is noteworthy that the Soviet Union and the US never intended for any of this material to be sold. Indeed, after NASA had mistakenly sold the bag from the Apollo 11 mission to a private individual, for just US $995, it went to the US courts in a failed effort to recover it.

3.4. National legislation

Two states have enacted national legislation enabling private individuals to acquire property rights over resources obtained in Space. In 2015, the US adopted the Commercial Space Launch Competitiveness Act (US Space Act),30 which entitles US citizens “engaged in commercial recovery of an asteroid resource or a space resource (…) to possess, own, transport, use, and sell the asteroid resource or space resource” (Art. 51303). Luxembourg adopted similar legislation in 2017, though unlike the US Space Act, non-citizens can also benefit from it. Luxembourg has since signed bilateral agreements with Japan, Portugal, and the United Arab Emirates concerning cooperation on Space activities, including the exploration and utilization of Space resources. In 2019, Russia and Luxembourg began talks to establish a similar agreement.

The US government regards the US Space Act as consistent with international law, as then State Department Legal Adviser Brian J. Egan explained in 2016:

Rather than abrogating the United States’ international obligations, the Space Resource Utilization Act affirms that space resource utilization activities are subject to the United States’ international obligations. By its terms, the Act sanctions space resource utilization only “in manners consistent with the international obligations of the United States.” Similarly, the Act only recognizes rights in resources “obtained in accordance with applicable law, including the international obligations of the United States.” The Act also recognizes that non-governmental space resource utilization activities are “subject to authorization and continuing supervision by the Federal Government.”

The Act is also consistent with the United States’ longstanding position that the Outer Space Treaty shapes the manner in which space resource utilization activities may be carried out, but does not broadly preclude such activities.

29 Brigit Katz, “Apollo 11 Moon Rock Bag Sells for $1.8 Million in Controversial Auction,” July 21, 2017, Smithsonian Magazine, https://www.smithsonianmag.com/smart-news/bag-used-apollo-11-sells-18-million-controversial-auction-180964153/ 30 U.S. Commercial Space Launch Competitiveness Act (introduced 12 May 2015, passed into law 25 November 2015) (2015) H.R.2262.

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The United States’ position on the issue of space resource utilization dates back several decades. For example, in 1979, Secretary of State Cyrus Vance articulated what was already at that point a longstanding U.S. interpretation of Articles I and II of the Treaty. Secretary Vance told members of the Senate Foreign Relations Committee that, under Article II of the Treaty, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” He went on to explain that “this ‘non-appropriation’ principle applies to the natural resources of celestial bodies only when such resources are ‘in place.’” The prohibition on national appropriation does not, however, limit “ownership to be exercised by States or private entities over those natural resources which have been removed from their ‘place’ on or below the surface of the moon or other celestial bodies.” Such removal, Secretary Vance further explained, is permitted by Article I of the Outer Space Treaty, which provides that “outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States…”

In 1980 testimony before the Senate, State Department Legal Adviser Roberts Owen reiterated that “the United States has long taken the position that Article I of the Treaty... recognizes the right of exploitation.” He acknowledged that this view is not shared by all States or commentators, and this remains true today. Notwithstanding the variety of States’ political positions on space resource utilization, the United States remains confident that its interpretation of Articles I and II over many decades and many administrations represents the better reading of the Treaty.31

As was explained above, there is a strong counterargument to this US position. And while the longstanding position of the US concerning its preferred interpretation of the Outer Space Treaty could be considered “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, as per Art 31(3)(b) of the Vienna Convention on the Law of Treaties, Egan himself admits that there is presently disagreement among the parties on this point.

3.5. Where the legal debate might lead

3.5.1. Treaty reinterpretation

Despite the present disagreement among parties to the Outer Space Treaty over the interpretation of Article 2 and the legality of commercial Space mining, it is conceivable that a new consensus could emerge, if more states adopted national laws similar to those of the US and Luxembourg or entered into bilateral cooperation agreements with those and other states on Space resource utilization. There is no threshold in international law concerning the minimum number of states that it takes to apply a treaty in a particular way before there is sufficient subsequent practice to consolidate a new interpretation. Indeed, the activities of a limited number of parties may establish the agreement of all—if the particular practice is public, well-known, and uncontested by the other parties. As the arbitral tribunal in the Beagle Channel Case wrote, “continued failure to react to acts openly performed, ostensibly by virtue of the Treaty, tended to give some

31 Brian J. Egan, “The Next Fifty Years of the Outer Space Treaty,” 7 December 2016, United States Department of State, https://2009-2017.state.gov/s/l/releases/remarks/264963.htm

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support to that interpretation of it which alone could justify such acts.”32 Should the rest of the parties to the Outer Space Treaty fail to protest or otherwise oppose the private rights to Space resources made available under national legislation in the US, Luxembourg, and elsewhere, the accepted interpretation of Article 2 could change.

3.5.2. Customary international law

Rules of customary international law often exist in parallel to treaty provisions, and the factors that cause these rules to change are very similar to those factors leading to a change in the accepted interpretation of a treaty provision. The adoption of national legislation constitutes “state practice”, as does the conclusion of a bilateral agreement. In addition to state practice, customary international law requires opinio juris (a belief that the practice is required by law) but this is readily evident within the context of legislation and bilateral agreements that are, like the US Space Act, explicitly conditioned on a particular understanding of the applicable international law. Last but not least, acquiescence to the development or change of a rule of customary international law is taken as implicit consent, just as it is with regard to a reinterpretation of a treaty provision, provided the practice and its legal relevance are public and well-known. It is therefore possible, in the absence of protests by states opposed to commercial Space mining, that the right to own extracted resources could become established in customary international law.

3.5.3. New treaty negotiations

It is also possible that the parties to the Outer Space Treaty might choose to negotiate amendments. Article 15 reads: “Any State Party to the Treaty may propose amendments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the amendments upon their acceptance by a majority of the States Parties to the Treaty and thereafter for each remaining State Party to the Treaty on the date of acceptance by it.”

It is perhaps more likely that a third of the parties to the Moon Agreement will (with the concurrence of the majority of the parties) exercise their collective right under Article 18 to initiate a review of the Agreement—in order to “establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon [and other celestial bodies].” We will return to this possibility in the policy section of this paper.

Alternatively, the same states, or some different configuration of states, might choose to negotiate an entirely new treaty on Space resource utilization. Such a negotiation could take place within an existing body such as the UN Committee on the Peaceful Uses of Outer Space, or it could be initiated, organized and hosted on an ad hoc basis—as Canada did with the Landmines Treaty and Norway did with the Cluster Munitions Treaty.

Brian Egan foresaw these different possibilities in the speech from which we quoted above:

32 Dispute between Argentina and Chile concerning the Beagle Channel (18 February 1977) XXII RIAA 53–264.

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To say that the Treaty does not preclude private ownership of resources extracted from a celestial body is not to suggest that the Treaty provides a comprehensive international regime for space resource utilization activities. At this stage, we see neither a need nor a practical basis to create such a regime. For one thing, initial technology demonstration missions will be required long before widespread space resource utilization activities occur. The four core space treaties provide a basic legal framework within which interested States can assure their interests are protected for such initial missions.

Egan’s reluctance to endorse a treaty negotiation in the near future is understandable, given that the US is currently in a minority position on this issue. However, the US is also trying to shift state practice and opinio juris in its favour, and if this happens, its position will grow stronger. The normative ground for an eventual negotiating conference can also be prepared through the development of “soft law”, as discussed below in the context of The Hague Building Blocks.

But while powerful states have always had a disproportionate influence on the making and changing of international law,33 in some instances less-powerful states have been able to play decisive roles by coordinating or collaborating with each other. One can see this dynamic with regards to the Earth’s oceans, where developing states collectively bargained with the US, Soviet Union and other developed states to secure international administration and revenue sharing with regards to deep seabed mining.

3.6. Learning from analogies

3.6.1. Oceans

3.6.1.1. Continental Shelf

The US has, on several previous occasions, succeeded in changing international law through novel assertions of rights. The best example concerns the 1945 Truman Proclamation, which asserted that the US and all other coastal states have rights over the seabed and subsoil of the continental shelf beyond the territorial sea. The claim was framed so as to benefit other coastal states, not only in terms of its general availability along all coastlines but also in the fact that it was not dependent on states having the technological capability to make use of it.34 As a result, the rights asserted in the Truman Proclamation attracted no opposition from other states and quickly became customary international law. This process occurred so rapidly that, by 1958, the new rule was codified in the Geneva Convention on the Continental Shelf.

By making its claim in a reciprocally available way, the US was thinking strategically about international law making. A further strategic calculation might also have been in play, in that the US was home at the time to the only oil companies with offshore drilling technology. This meant that the US, through those companies, stood to benefit from the continental shelf rights of other states as well as its own.

33 Michael Byers, Custom, Power and the Power of Rules (Cambridge: Cambridge University Press, 1999); Michael Byers & Georg Nolte (ed.), US Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press, 2003). 34 Byers, ibid.

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Today, the claim that commercial actors can acquire property rights over Space resources is also generalizable, in that, under the US position, any state could adopt legislation to allow its companies to engage in Space mining. However, minerals on the Moon, Mars and asteroids are not geographically proximate to single states, as is the case with oil on the continental shelf, so the jurisdiction over any particular deposit is not thereby exclusive. As a result, the benefits of Space mining will accrue to those who get their first, which at the moment means companies incorporated in the US and Luxembourg. Unlike the Truman Declaration, there is little incentive for developing states, which still make up the majority of countries, to support private rights to Space resources—absent some kind of benefit sharing regime.

3.6.1.2. Deep seabed

Part XI of the UN Convention on the Law of the Sea (UNCLOS) provides a model for an international administrative and revenue sharing regime of the type likely envisaged by the drafters of Article 11(5) of the Moon Agreement. It was negotiated as part of a “package deal” whereby all oceans issues were dealt with in a single large instrument, which increased the chances of states being able to find positions they could concede (e.g., in the case of the US, a 12-mile limit for the territorial sea) in return for securing reciprocal concessions on issues of greater importance to them (e.g., in the case of the US, transit rights in straits used for international navigation). An international regime for deep seabed mining was a priority for developing states, and through collective bargaining they were able to secure the designation of the deep seabed as the “common heritage of mankind” and the creation of the International Seabed Authority to develop regulations, license specific mining operations by national governments, and collect and redistribute a portion of the revenues obtained. However, these provisions – set out in Part XI of UNCLOS – were only reluctantly agreed by the US. After the Cold War ended and the US emerged as the sole superpower, it exercised its increased influence to re-open negotiations on Part XI. One of the results of that renegotiation was the opening of the deep seabed mining regime to private companies (although, like states, they are subject to the regulatory, licensing, and revenue distribution powers of the International Seabed Authority). Today, the US has still not ratified UNCLOS, but it accepts most of the substantive provisions as reflective of customary international law. As for the deep seabed mining regime, it is proving successful, with Chinese companies being the leaders in applying for and receiving licenses from the International Seabed Authority.

The existence of Part XI of UNCLOS would make the design of an international regime for space resource utilization relatively easy, if political will existed among enough states.

3.6.1.3. High seas

The “high seas” – the fully accessible surface and water column of the ocean – have been limited by the ongoing development of coastal state rights, from the extension of the territorial sea (from 3 to 12 nautical miles) to the adoption of a 20 nautical-mile Contiguous Zone and a 200 nautical-mile Exclusive Economic Zone in UNCLOS. In 1995, the UN Agreement on High Seas Fisheries and Straddling Stocks encouraged the negotiation of “regional fisheries management organizations” to set science-based quotas to protect against overfishing. Today, the co-

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management of high seas resources is relatively common, taking place both bilaterally (e.g., Norway-Russia in the Barents Sea) and multilaterally (e.g., the North Atlantic Fisheries Organizations). Sometimes, when the science indicates that a sustainable fishery is not possible, quotas are not provided (e.g., Central Bering Sea Pollock Agreement), or a formal moratorium on commercial fishing is declared (e.g., Central Arctic Ocean Fisheries Agreement). The point is, states are able to co-manage resources in areas beyond national jurisdiction, including by limiting or prohibiting the extraction of resources when science indicates this is necessary.

3.6.1.4. Antarctic

[To be developed: Another model for the governance of space resources can be found in the Antarctic, both with the Antarctic Treaty and the Madrid Protocol. An effort to negotiate a mining protocol failed, with the end result being that mining is prohibited on the southern continent until at least 2048.]

3.7. How do we reconcile use vs. appropriation if use of the celestial body would destroy it?

If commercial space mining was recognized as legal notwithstanding the Outer Space Treaty’s prohibition of national appropriation, mining might sometimes result in the ultimate act of appropriation, namely the destruction of the celestial object in question. Indeed, some space mining proposals involve redirecting small asteroids into Earth orbit where their resources could be easily accessed—and entirely consumed.

In cases such as this, reconciling a right to commercial extraction with the prohibition on national appropriation will require restraint on the part of all states licensing space mining. Fortunately, models already exist for agreements like this. Again, in 2017, the five Arctic Ocean states (Canada, Denmark, Norway, Russia and the US) together with China, the EU, Iceland, Japan, South Korea concluded a treaty on high seas fishing in the Arctic Ocean whereby they agreed to prohibit commercial fishing by ships flying their flags until such time that science demonstrates that a sustainable fishery is possible.35 They also agreed to “take measures consistent with international law to deter the activities of vessels entitled to fly the flags of non-parties that undermine the effective implementation of this Agreement.”

One could imagine space mining states agreeing to science-based standards for licensing mining operations, potentially including a limit on the proportion of an asteroid that can be mined—along with protections against the creation of debris or dangerous alterations of trajectories, as discussed below. Relatedly, it is conceivable that a test or actual exercise in planetary defence could result in the destruction of an asteroid. This situation, and the potential legal considerations, will also be discussed below.

3.8. Technology and revenue sharing

35 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, 2017, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=COM:2018:454:FIN

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Luxembourg’s adoption of favourable legislation is already leading Space mining companies to incorporate there. With time, the tiny European country could become what Canada is for terrestrial mining: a global hub, with all the ancillary benefits, including a concentration of related industries such as mining finance.36 As a result, the economic benefits of Space mining could end up flowing to just one or a few countries. Would this be compatible with Article 1 of the Outer Space Treaty, which stipulates that Space and its resources must equally benefit all states?

Again, the Moon Agreement took steps in the direction of a revenue sharing regime. Article 11(1) states: “The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.” That paragraph (Article 11(5)) states:

States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

Article 18 provides a mechanism for initiating a review of the Moon Agreement that “shall also consider the question of the implementation of the provisions of article 11, paragraph 5, on the basis of the principle referred to in paragraph 1 of that article and taking into account in particular any relevant technological developments.”

We will return to Article 18 in the policy section of this paper, since it provides an avenue for initiating negotiations on a new international Space mining regime.

3.9. Liability

3.9.1. 1967 Outer Space Treaty

Article 7 of the Outer Space Treaty reads:

Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the moon and other celestial bodies.

3.9.2. 1972 Liability Convention

36 Seventy-five percent of “the world’s mining industries are headquartered in Canada” and approximately “1,300 mining companies based out of Canada are investing hundreds of billions of dollars in over 100 countries around the world”. See Dean, Dave, “75% of the World's Mining Companies Are Based in Canada,” VICE News, 9 July 2013, https://www.vice.com/en_ca/article/wdb4j5/75-of-the-worlds-mining-companies-are-based-in-canada

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The 1972 Liability Convention elaborates on Article 7 of the Outer Space Treaty, most significantly by specifying that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight” (Article 2), but that “In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible” (Article 3).

The drafters of the Liability Convention did not envisage all of the Space activities that are readily foreseeable today, such as activities on the surface of the Moon that would, in the absence of a lunar atmosphere, be particularly susceptible to debris caused by asteroid mining, by resource transfer between bodies, or by de-orbiting selenocentric37 orbital debris. In other situations, it might be difficult to determine fault without delving into the question of foreseeability. Would a state be liable for the secondary consequences of space mining, such as damage caused to a satellite by debris? What about the tertiary consequences of losing the services provided by that satellite? Fortunately, customary international law – including the customary international law of “state responsibility” – can fill some of the gaps.

3.9.3. State Responsibility

The first two sentences of Article 6 of the Outer Space Treaty read:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

Article 6 does two important things: First, it makes the actions of space companies directly attributable to the states in which they are incorporated. Second, it extends this “international responsibility” beyond the scope of Article 7 of the Outer Space Treaty and the entire Liability Convention, which concern the liability for damage caused by Space objects. This is important because one can easily imagine damage that is not caused directly by a “Space object”, in the sense of piece of machinery launched from the surface of the Earth into Space. Take, for example, deaths, injuries, or property damage on the surface of the Moon caused by debris created during mining. One could seek to attach liability to the machinery used in the mining, as “Space objects”, but what if the mining equipment were manufactured in Space—as developments in 3D printing suggest it soon could be? At some point, the assumption inherent in both the Outer Space Treaty and the Liability Convention – that human activity in space is restricted to satellites and spacecraft launched directly from Earth – will break down. So too will the assumption, in the Liability Convention, that damage caused in Space will be restricted to persons or property on “Space objects”.

37 An orbit about the Moon.

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International law can accommodate these developments by dealing with damage caused by “Space objects” launched directly from Earth under the lex specialis of the Outer Space Treaty and the Liability Convention,38 and all other damage under more general rules of customary international law. These would include “primary” obligations not to willfully or negligently harm the nationals of another state or their property, and “secondary rules” such as those on “state responsibility”—as codified by the UN International Law Commission in 2001—which govern issues such as the consequences of a breach and the form of reparations.39

3.9.4. Domestic courts

It is foreseeable that space mining companies will eventually be sued in domestic courts for damage caused to individuals, other companies, or national governments as a result of their activities. In common law systems such as Canada, the UK and the US, such suits could be grounded in tort law,40 and specifically the tort of negligence. If so, the issue of causation will figure prominently.

3.9.5. Causation

The most challenging issue in determining liability for damage caused by space companies will likely be establishing causation, particularly for the secondary and tertiary effects of their activities, for example damage caused to satellites in Earth orbit by debris from asteroid mining conducted years earlier and vast distances away, or damage caused to governments, individuals or companies on Earth as a result of the loss of the services provided by those satellites. However, just as advances in climate science are opening the door to climate change litigation in domestic courts by enabling the establishment of causation for sea level rise and other consequences of climate change, and the attribution of specific percentages of damage to individual fossil fuel companies and other large emitters,41 we can expect that advances in astrodynamics and Space situational awareness will eventually solve the causation challenge with regard to Space mining.

4. Risks of Space mining: Planetary Protection

Risks can arise both at mine sites and when equipment and minerals are brought back to Earth.

38 Article 55 of the Articles on State Responsibility is entitled “Lex specialis” and reads: “These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.”39 James Crawford, The International Law Commission's articles on state responsibility: introduction, text and commentaries. Cambridge University Press, 2002.40 Tort law concerns acts or omissions that give rise to injury or harm to others and amount to civil (as opposed to criminal) wrongs. 41 Michael Byers, Kelsey Franks, and Andrew Gage. “The internationalization of climate damages litigation.” Wash. J. Envtl. L. & Pol'y 7 (2017): 264.

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Article 7(1) of the Moon Agreement provides:

In exploring and using the moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the earth through the introduction of extraterrestrial matter or otherwise.

4.1. What requirements on commercial actors are reasonable for preventing contamination of celestial bodies?

In February 2018, SpaceX launched a Tesla Roadster into a Mars-crossing orbit as a dummy payload for a rocket test.42 The car potentially has the largest uncontrolled biomass ever sent by humanity into interplanetary Space,43 with a small risk of contaminating Mars. Then, in April 2019, a private Israeli spacecraft named Beresheet crashed on the Moon, with thousands of tiny Tardigrades (“water-bears”), an extremely resilient life-form.44 The Tardigrades had been dehydrated before the voyage and will remain so on the waterless surface of the Moon.

Both incidents were clear violations of international rules on planetary protection—which apply in both directions, guarding against potentially dangerous transfers of living creatures both to and from Earth. Article 9 of the Outer Space Treaty includes the following sentence:

States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.

Since states are responsible for the activities of space companies licensed by them, it follows that they are responsible for ensuring that harmful contamination is avoided during commercial Space mining and other Space activities engaged in by non-state actors of all kinds.

The requirement to avoid harmful contamination exists for at least three reasons: (1) To protect living creatures on Earth from alien diseases or other invasive life forms; (2) To protect any ecosystems that might exist on other celestial bodies from being contaminated by terrestrial life forms; (3) To protect the integrity of astrobiology – the search for living creatures in Space – by preventing the creation of false-positives from biomarkers or organisms originating on Earth.

42 https://www.space.com/39612-spacex-starman-tesla-roadster-live-views.html43 https://www.purdue.edu/newsroom/releases/2018/Q1/tesla-in-space-could-carry-bacteria-from-earth.html44 Daniel Oberhaus, “A Crashed Israeli Lunar Lander Spilled Tardigrades on the Moon,” Wired,August 5, 2019, https://www.wired.com/story/a-crashed-israeli-lunar-lander-spilled-tardigrades-on-the-moon/

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Space mining companies are unlikely to deliberately carry Tardigrades or other terrestrial life forms to the Moon, Mars, or asteroids. However, the outsides of spacecraft are always contaminated to some degree. The requirement to avoid harmful contamination has been elaborated by recommendations on planetary protection designed to reduce this contamination—in balance with the risk that life forms might exist at their destinations.

The Committee on Space Research (COSPAR) is a non-governmental organization that was created by the International Council of Science in 1958. Based in Paris, COSPAR maintains a regularly updated set of recommendations on planetary protection that divides space missions into five groups depending on the type of space mission and the celestial body being visited. Missions to locations such as Mercury or the Sun do not require protection measures, while missions to search for life forms on Mars require extreme measures, including the full sterilization of the spacecraft. Although the COSPAR recommendations are just that – recommendations – they nevertheless elaborate and update the legally binding rule set out in Article 9 of the Outer Space Treaty. For this reason, they are taken very serious by national space agencies and are, in some countries, reflected in national legislation and regulations.

For this reason, planetary protection protocols must be a central part of any licensing system for space mining, whether domestic or international. With this in mind, it must be noted that natural processes have transported Martian material to Earth as meteorites,45,46 and the transport of Earth material to Mars may also have occurred.

4.2. What about equipment left behind after a mining operation? What rules of salvage apply in Space? 

Apart from planetary protection, by which is meant the avoidance of contamination of-and-by life forms, there are no rules specifically prohibiting pollution in space. One can see one of the consequences of the absence of such rules in Earth orbit, where thousands of derelict satellites and rocket stages are found, and on the surface of the Moon in the form of abandoned equipment and even human feces. Compare this situation to that of the high seas, where the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (“London Convention”) prohibits the dumping of some kinds of waste and restricts the dumping of others. The London Dumping Convention is supplemented by a number of regional arrangements, such as the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (“OSPAR Convention”).

However, removing equipment from the Moon, Mars or an asteroid post-mining might be exceedingly difficult or prohibitively expensive. While international rules to control pollution from Space mining are clearly needed, the aim should be to prevent the most negative forms of pollution (e.g. radioactive waste), and to reduce other forms of pollution as much as possible—including by encouraging the development and use of new technologies.

45 The meteorite groups Shergottites, Nakhlites, and Chassignites46 Gladman et al. 1996, Science, 271, 1387

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Some people assume that the law of salvage applies in Space, but it does not—at least not as “pure salvage”, i.e. non-consensual salvage. This is because of the two last sentences in Article 8 of the Outer Space Treaty:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party of the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

Note that the jurisdiction and control of the state of registry never lapses, nor does the ownership of the space object and its components, whether held by a state or a company. Note also that there is no obligation of compensation on the part of the state to which a Space object or component part is returned.

While “pure salvage” is non-consensual and does not exist in Space, “contractual salvage” involves an owner contracting with another state or company to retrieve its property. This could certainly take place with regard to a space object or its components. However, contractual salvage is not what most people are thinking of when they imagine salvage taking place in Space.47

5. Risks of Space mining: Destruction of scientifically valuable materials and locations

Some parts of Mars and many asteroids could have considerable scientific value, possibly including information concerning the origins of life. The drafters of the Moon Agreement clearly foresaw the need for international protections, with Article 7(3) reading:

States Parties shall report to other States Parties and to the Secretary-General concerning areas of the moon [and other celestial bodies] having special scientific interest in order that, without prejudice to the rights of other States Parties, consideration may be given to the designation of such areas as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.

5.1. How do we ensure space mining does not destroy key opportunities for science?

Asteroids contain some of the oldest material in the Solar System. The Moon holds valuable information about the cratering record (e.g., past impact rates that by extension also affected Earth), the early evolution of Earth, and the effects of space weathering on airless surfaces. Mars

47 Michael Listner, “Taking salvage in outer space from fiction to fact,” The Space Review, March 20, 2017, https://www.thespacereview.com/article/3198/1

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is a rich environment for understanding rocky planet evolution, especially in comparison with Earth, as well as offering opportunities to understand whether life exists elsewhere.

Extracting water from asteroids could lead to aqueous and thermal alterations that affect the cosmochemical signatures of pristine material from the epoch of planet formation. Scientifically valuable regions on the Moon and Mars could be contaminated through mining. These concerns could be mitigated, to some degree, by requiring the ongoing extraction of pristine samples. Such an approach would prioritize science whenever a new site or stratigraphic layer is opened for resource extraction, much like archeologists on Earth being given access to areas designated for development. However, the effectiveness of such an approach may depend on international oversight and monitoring. Other locations will be deserving of complete protection—for example, Martian regions with high current or past water content.48 Again, this approach is commonly used on Earth, including through parks and marine protected areas.

5.2. Should some asteroids be designated as too dangerous to mine, or set aside for scientific study?

On 13 April 2029, a 340-metre asteroid named ‘Apophis’ will safely pass within 40,000 km of Earth,49 temporarily closer to us than geostationary satellites. The intersection of the asteroid on the B-plane is shown in Figure 4, left panel. The scatter in the points represent the orbital uncertainty, demonstrating that the asteroid poses no impact risk. While significant attention is being paid to Apophis, in part due to its size, it is important to recognize that many asteroids regularly have close approaches to Earth. Within the past year, about 90 asteroids have passed within one lunar distance,50 with most of these being less than 10 metres in diameter. Two of these asteroids, however, were around 100 metres in size, and several others were larger than 30 metres.

Such asteroids are potential targets for resource extraction,51 and similar-size asteroids may be redirected into cislunar orbits to facilitate mining. However, the economic models of such ventures explicitly note a willingness to accept mission failures.52 This raises the concern of a mining-induced impact risk. To demonstrate this possibility, we return to an Apophis-like orbit.

In Figure 4, we show simulations results53 for two hypothetical situations, once again using the orbit of Apophis. Please note, however, that we are using Apophis’s orbit as a proxy for asteroids on close encounters with Earth and are not limiting the discussion to Apophis only. In the middle panel, the asteroid was perturbed along or against its track using a Δ v drawn from a

48 Rapin et al. 2019, Nature Geoscience, 12, 889. See also: https://www.sciencealert.com/the-mars-gale-crater-may-have-once-held-a-sloshing-salty-lake-3-3-to-3-7-billion-years-ago49 S. Chesley, 2006. “Potential impact detection for Near-Earth asteroids: the case of 99942Apophis (2004 MN 4)”. 229 Asteroids, Comets, Meteoroids, IAU Symposium, 215-228.50 https://cneos.jpl.nasa.gov/ca/51 https://www.thespaceresource.com/news/2019/6/transastra-mini-bee52 https://www.transastracorp.com/economic-model.html53 Simulations are run using Rebound and ReboundX using all eight planets and GR corrections for all massive bodies. Initial conditions and uncertainties are taken from the JPL Solar System Dynamics database.

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Gaussian distribution with a standard deviation of 3 cm/s. The perturbation for the simulation was done on 24 September 2008 (orbital epoch of Apophis). Impacts occurred during the April 2029 close approach for Δ v’s approximately between -3.5 and -5 cm/s. If we envisage a longer timescale (perturbations applied in 1929), a Δ v of 100 microns/s will lead to impacts during the April 2029 close approach. The results are shown in the right panel of Figure 4, which are similar to the middle panel but draw from a Gaussian distribution with a standard deviation of 100 micron/s for determining each realization’s Δ v.

The feasibility of such Δ v’s will depend on the actual asteroid mass and the nature of the perturbations. Likewise, these simulations are not intended to suggest a likelihood of such a situation arising. Instead, the point of these simulations is to demonstrate that careless or unexpected actions could result in placing asteroids with close approaches onto impact trajectories. This could be due to a failed mission during which an intended trajectory change is incomplete, or it could be due to accidental trajectory changes if mining induces large mass losses (e.g., a volatile-induced explosion). Although active telemetry could warn of such an

event, it would still trigger a global crisis.

5.3. World Heritage Sites in Space?

Again, Article 7(3) of the Moon Agreement stipulates that areas of the Moon and other celestial bodies having special scientific interest shall be reported, including to the UN Secretary General, so that “consideration may be given to the designation of such areas as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.” One such competent body could be UNESCO, the

Figure 4: Three different simulation suites are shown for Apophis, with each dot representing a realization of the asteroid’s orbit for different assumptions. The coordinates are distance on the B-plane (body plane), measured in Earth radii, during the 13 April 2029 close approach, which will place the asteroid at a distance less than 40,000 km from Earth’s geocentre for the nominal solution. If a particle lies within the dashed circle, Earth’s gravity will ensure an impact occurs. Left: The actual asteroid’s uncertainty region in the B-plane, as determined by integrating the asteroid’s position from the 2008 epoch. All eight planets are included, as well as the Moon. GR corrections are used for all massive bodies, and the Yarkovsky drift is included. Initial conditions sampled the uncertainty in position and velocity. There is no chance that Apophis will hit Earth in 2029. Middle: A hypothetical situation that starts with the nominal orbit in 2008 and perturbs the velocity using a random Gaussian deviate (i.e., a random variable drawn from a Gaussian/normal distribution) centred on the actual velocity. Perturbations are either along or against the track, and the standard deviation of the Gaussian is 3 cm/s. For perturbations around -3.5 cm/s in 2008, Apophis could be redirected onto an impact trajectory. Right: Similar to the middle, but backward integrates the orbit to 1929 and then perturbs the nominal orbit at that time using a standard deviation of 100 microns/s. Perturbations of 100 microns/s in 1929 would place Apophis onto an impact trajectory (a 100 yr delay). The point is that small perturbations today could have significant consequences in the future.

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United Nations Educational, Scientific and Cultural Organization, which designates “World Heritage Sites” based upon inventories of cultural and natural heritage submitted to its World Heritage Committee.

To receive designation as a World Heritage Site, the proposed location must be of “outstanding universal value” and meet at least one of ten criteria, two of which are available for non-living places:

vii. “contains superlative natural phenomena or areas of exceptional natural beauty and esthetic importance”

viii. “is an outstanding example representing major stages of Earth’s history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features”

The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, which governs these matters, clearly envisages that World Heritage Sites will always fall within a state’s territory or maritime zones. The furthest that it goes towards recognizing the possibility of a World Heritage Site in an area beyond national jurisdiction is Article 11(3), which states that “The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.”  However, there is nothing in the Convention that prevents the World Heritage Committee from going further and initiating a process for create the first World Heritage Site beyond national jurisdiction, on the Moon, Mars, or an asteroid.

5.4. Are there areas on celestial bodies deserving of protection for aesthetic reasons?

Some locations on Earth, such as certain rock formations and waterfalls, have been protected due to their aesthetic value. Some World Heritage Sites exist for aesthetic reasons, with one of the criteria listed above being clearly available in such circumstances: “vii. contains superlative natural phenomena or areas of exceptional natural beauty and esthetic importance.”

The most immediate question of aesthetic protection in Space concerns the surface of the Moon. While changes visible by the naked eye from Earth would require alteration far beyond current means, we must ask to what degree the visible features and cultural heritage stemming from the Moon should be preserved. Other potential mining sites will not be visible to the naked eye from Earth but may become visible to human eyes later, as our species expands into Space. Should that prospective enjoyment be protected? Should the enjoyment provided remotely by photographs or videos be protected? Does part of our enjoyment come, not necessarily in seeing a beautiful natural feature, but simply in know that it is there?

6. Risks of Space mining: Competition for access

How should space mining companies “stake claims”? How do we avoid the risk of unexercised claims impeding development? How do we avoid the risk of premature and perhaps unsafe development because of the imminent lapse of a claim? How long should one be allowed to

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prevent another actor from using a resource under a claim? Should a company mining an asteroid be given exclusive access to that asteroid during the period of its activities, so as to reduce the risk of accidents? At the governance level, all of these questions raise the same central issue of whether the licensing and regulation of space mining can be left to national authorities, or if some sort of international mechanism is needed instead. National governments are ideally placed to regulate companies incorporated in – and operating from – their territory. But competition to attract space companies could result in a regulatory race to the bottom, or to “flag of convenience states”—as discussed below. Multilateral mechanisms can operate well for such matters, as demonstrated by the International Seabed Authority, if they are ratified by a sufficiently large number of states, provide the access to resources that governments and companies need, and operate in a fair and transparent manner.

The danger is that, in the absence of a rigorous licensing and regulatory system, space mining could take on the characteristics of a “gold rush”, as occurred historically in California, British Columbia, The Yukon, and elsewhere. Accidents and conflicts are common in such situations, as individuals and companies seek to make and exploit claims as quickly as possible—because of the constant threat of losing out to competitors in the absence of clear and enforced rules.

6.1. What is meant by a “safety zone” for operations on a celestial body, i.e., how would this be defined?

Temporary safety zones exist on Earth for a variety of reasons, including in areas beyond national jurisdiction. Safety zones are created for naval exercises on the high seas, though they are not necessarily respected by surveillance ships from unfriendly countries. These safety zones can be declared unilaterally or, in the case of military alliances, multilaterally.

“Notices to Airmen” and “Notices to Mariners” are issued to keep aircraft and ships out of the debris fields created by returning rocket stages. Such notices are issued through the International Civil Aviation Organization and the International Maritime Organization, respectively.

Oil platforms are often positioned in the exclusive economic zones of coastal states, and sometimes over areas of extended continental shelf (where the coastal state has sovereign rights over seabed resources), and safety zones are created around such platforms—since all ships have freedom of navigation beyond 12 nautical miles from shore. The width of these safety zones varies from state to state, and from circumstance to circumstance. In 2015, a US court granted Shell an injunction to enforce a safety zone around a drill ship in the Chucki Sea where protests by Greenpeace activists were anticipated.

The International Seabed Authority licenses deep seabed mining operations and, when doing so, ensures that different operators do not impinge on each other’s operations. The licenses also protect ecosystems around hydrothermal vents by requiring that mining operations not approach within a certain distance of them.

From a legal perspective, all these examples show that safety zones could be used in Space. The question, as above, is whether these issues can be safely and effectively dealt with under national licensing regimes, or whether some sort of international mechanism is needed. From a practical

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perspective that considers physical processes in space environments, one has to ask: What would safety zones look like for different bodies, and how could they be defined?

6.2. Would a safety zone function as a de facto way to claim ownership of a region of a celestial body?

Placing mining equipment on the deep seabed does not result in ownership rights over that location. Constructing buildings and other structures on Antarctica does not result in ownership rights there. Stationing an oil platform over an area of extended continental shelf does not create ownership rights in the high seas. In areas beyond national jurisdiction on Earth, use of an area, and the placement of equipment to support that use, do not change the status of the area. There is no reason to expect anything different in Space. And indeed, Brian Egan was clear in his speech that the US does not believe that positioning equipment or structures on a celestial body creates ownership rights to that portion of the body below it.

6.3. How do we avoid or resolve conflicts with and between resource extraction rights?

Any national licensing authority for space mining should avoid issuing licenses that may bring space companies into conflict. It should also ensure access to dispute settlement, either through private arbitration or national courts. This is what happens with regards to mining on Earth, with the exception of the deep seabed where the licensing authority is the International Seabed Authority, and where dispute settlement mechanisms are provided by the UN Convention on the Law of the Sea. An international treaty on space mining should also provide a mechanism for licensing operations, avoiding conflicts, and resolving them when they arise.

7. Risks of Space mining: Flag of convenience states

The term “flag of convenience” comes from international maritime law and refers to the practice of registering a ship in a state other than that of the ship’s owner in order to reduce operating costs.54 Flag of convenience states such as Liberia and Panama offer low levels of regulation and oversight and between them account for the majority of ship registrations. Not surprisingly, safety concerns are common with such vessels.55

Canada could be seen as a flag of convenience state with regards to terrestrial mining. Most of the world’s mining companies are incorporated there, many of them with minimal other attachments to the country. In general, Canadian mining companies have poor reputations with regards to their activities in Africa, Latin America and Asia when it comes to human rights and environmental protection.

54 D.Z.O. Özcayir and I. General. 2000. “Flags of Convenience and the Need for InternationalCooperation.” 7(4) International Maritime Law 111-117.55 Aleka Mandaraka-Sheppard, Modern Maritime Law (Vol. 2): Managing Risks andLiabilities (3rd ed. 2013), 69.

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Flag of convenience states accrue economic benefits at the cost of global interests. Not only do they enable companies to avoid regulations and oversight; they can cause a “race to the bottom” as other states lower their own standards in order to compete.

7.1. What if a space mining company incorporated in a flag of convenience state or registered its spacecraft there?

One could well imagine flag of convenience states emerging in the context of Space mining, with companies incorporating in jurisdictions with relatively low levels of regulation and oversight or licensing their Space objects there. Luxembourg could be on its way to becoming the first flag of convenience state for Space mining: It has already adopted legislation giving companies the right to own minerals extracted in Space, offered subsidies for Space mining companies to incorporate there, and has a well-deserved reputation as a tax haven. In any event, the emergence of flag of convenience states in the Space mining domain would undermine efforts by more responsible states, acting individually or collectively, to ensure that Space resource utilization occurs in a safe and sustainable way.

7.2. Are new international rules or guidelines needed on this topic, and how can they best be created, widely adopted, and enforced?

At the International Maritime Organization, flag of convenience states take part in the development of ‘lowest common denominator’ rules acceptable to everyone. Arguably, the existence of globally accepted rules is better than an absence of such rules. But even then, one of the problems with flag of convenience rules concerns low levels of oversight and enforcement. To give an example from another area of international law, almost all states have ratified the major human rights treaties, but not all of them adhere consistently to the obligations contained in them.

In the maritime domain, developed states have taken advantage of the rights provided by “port state authority” within the Law of the Sea, in order to ensure that vessels registered in flag of convenience states are following internationally agreed rules. Following this model, states willing to enforce international rules on Space mining could assert jurisdiction over the mining companies whenever equipment, personnel, or funds entered their territory.

8. Risks of Space mining: Lunar soil

As discussed in section 2, the Moon is covered in fine-grained material called regolith. Much of this material is in fine particulates (“lunar soil”) extending down to at least 10 metres.56 The sizes of the particles (some less than 10 microns) are small enough to pose problems for the long-term use of machines. Lunar soil also contains small agglutinates with sharp angles, which carry significant risk to human respiratory health,57 particularly as dust will cling to spacesuits and could be difficult to control in habitations.

56 Chunlai et al. 2020, Science Advances, 6, 957 Cain 2010, Earth, Moon, and Planets, 107, 107

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The lunar soil is also mobile. Apollo mission astronauts reported “horizon glow”, which is thought to be due to small dust grains levitated off the lunar surface due, in part, to electrostatics,58 driven by surface interactions with the solar wind and short wavelength light.59 In 1972, the Lunar Ejecta and Meteorites experiment (carried out during the Apollo 17 mission) showed that lunar dust transport is pervasive on the surface,60 and that horizon glow involves the suspension of fine dust (less than a micron) at high altitudes, creating a tenuous dust “atmosphere”. Such high altitude dust is thought to occur through “dynamic fountains”, wherein dust is accelerated through electrostatic forces and then travels ballistically.61 Dust “ponds” in craters and “swarms” may also be possible, under certain conditions.62 High altitude dust will further affect astronomical observations from the Moon,63 though this may be limited to observations near the horizon or during terminator64 passage over the observatory.

Overall, lunar dust mitigation will be a principal concern for lunar mining operations, and may require significant technological innovations as well as, potentially, strict limitations on human activity outside of habitations.65

9. Risks of Space mining: Debris in Lunar or Mars orbit

The Earth orbital environment is becoming increasing congested and full of orbital debris (i.e., space junk), particularly low Earth orbit.66,67 With the expected increase in activity on and around the Moon and Mars, there is a danger of repeating the same mistakes that have been made (and are currently being made) and leading to unsustainable development of the selenocentric (lunar) and areocentric (Mars) orbital environments. Furthermore, each celestial body contains a unique set of challenges.

The sustainability of any given orbital region can be thought of as assessing both the total collisional cross section of orbiting material (alternatively the collision risk over some time period), as well as the growth of debris. The latter reflects a rate equation. If the growth of in-orbit debris per time for a given orbital regime (Rdeb) exceeds the loss of debris (Rloss), then the debris field will grow. If Rloss>Rdeb, then the orbital environment could be sustainable.

Around Earth, Rloss is driven by atmospheric drag (for altitudes less than about 1000 km, although this depends on a number of factors), radiation pressure from the Sun, and orbital 58 McCoy and Criswell 197459 Rennilson and Criswell 197460 Berg et al. 197661 Stubbs et al 2005, Advances in Space Research62 Collier et al. 2013, Advances in Space Research, 52, 263 Murphy and Vondrak 1993, LPI, 24, 103364 The terminator is the dividing line between day and night on a celestial body.65 For example, see https://www.wired.com/story/inside-swamp-works-the-nasa-lab-learning-to-mine-the-moon/66 https://www.theglobeandmail.com/opinion/article-we-are-polluting-outer-space-its-time-to-clean-up-our-orbit/67 https://www.sdo.esoc.esa.int/environment_report/Space_Environment_Report_latest.pdf

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perturbations from the Moon and the Sun. Around the Moon, atmospheric drag is absent. However, selenocentric orbits can be highly perturbed due to the Moon’s uneven mass distribution,68 causing satellites to crash into the lunar surface with orbital lifetimes as short as 150 days for objects at 100 km lunar altitude. High-altitude orbits are affected by Earth, as well as radiation pressure. Stable orbits are possible;69 however this creates a region of preferred orbits that could be affected by debris growth, similar to particular orbital slots around Earth.

Mars has a very different consideration—planetary protection.70 It also does not have the same perturbative environment as the Moon and does not have as extensive an atmosphere as Earth to de-orbit defunct satellites or debris. Currently, there are 14 satellites in areocentric orbits, eight of which are defunct and cannot currently be tracked. Debris that accumulates around Mars may be particularly problematic, as it could have long lifetimes.61

Deorbiting debris around the Moon and Mars has additional risks, as the atmospheres (or lack thereof for the Moon) will be ineffective in ablating material upon disposal. This could create an additional hazard for surface operations, particularly for uncontrolled descents of derelict spacecraft.

10. Risks of Space mining: Debris streams

Asteroids have very low escape speeds, such that a particle launched from an asteroid’s surface will gravitationally escape from the body if its speed is comparable to or greater than

vesc=41 (ρm / 1200 kgm−3 )1 / 2 ( R / 500 m ) cm / s.

This means that ejections of even 1 metre per second (slightly slower than average walking speed) will cause material to be lost from an asteroid. Surface operations on an asteroid without any containment should thus be expected to dislodge asteroid regolith and rocks.

However, even if containment is possible, most of the mass of an asteroid (as well as Martian and lunar regolith) will be waste material and will require disposal. For asteroids, the likely course of action will be to jettison the waste to avoid the mass interfering with further operations, including the need to transport unwanted mass at great expense.

If such mining takes place in cislunar space, then even a small amount of debris could become problematic.71 However, even operations in deep space are of potential concern, which will preferentially be on asteroids that have frequent and low-energy rendezvous windows. This in turn will preferentially select asteroids with small MOIDs. Thus, should there be prodigious mining of an NEA that is on an Earth-crossing orbit, the resulting debris would become a meteoroid stream. This would become of concern if the stream meteoroid flux were to exceed

68 Meyer et al. 1995, NASA-TP-339469 https://science.nasa.gov/science-news/science-at-nasa/2006/30nov_highorbit70 Suchantke et al. 2019, First International Orbital Debris Conference, Houston, TX71 Roa and Handmer 2015, arXiv:1505.03800

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the sporadic complex during stream passage, which is possible.72 Even if mining itself does not produce sufficient mass loss, the disturbance of the asteroid’s surface could lead to substantial parent body processes. This possibility is emphasized by the recent observations of a seemingly inactive asteroid that exhibits, upon close inspection, sporadic mass loss,73 which is not understood.

Streams are ultimately formed as a result of Keplerian shear, i.e., the spreading of material due to the differences of particle orbit periods for particles on slightly different orbits. Such spreading occurs rapidly for smaller particles that are immediately influenced by solar radiation, but larger particles take time to spread out (which can be facilitated by a close approach to Earth). This spreads the meteoroids over a larger area, reducing their effect (i.e., a lower meteoroid flux during stream passage despite a large mass overall in the stream). However, if the large meteoroids have not had a chance to spread significantly, then they would form an elongated cloud. Upon a close approach to Earth, such a cloud could result in a meteor storm (high flux of meteoroids) despite having a low meteoroid cloud mass.

Such streams become a concern for changing the meteoroid flux incident on Earth satellites, as well as selenocentric orbit and surface missions.

11. Risks of Space mining: Trajectory changes

Some initial plans for asteroid mining include rendezvousing with small, near-Earth asteroids whenever there is a close approach, but an incautious redirection attempt, or unintended mining-induced mass outbursts, could inadvertently steer an asteroid toward an Earth impact.

11.1. Should commercial spacecraft telemetry and information on mass removal be proprietary or necessarily shared?

While open data sharing from mining spacecraft could be of major benefit to planetary defence, (i.e., despite serving as a perturbing force on asteroids, we would have persistent telemetry) proprietary data practices could frustrate such efforts and even allow dangerous trajectory changes of asteroids to accumulate without applying corrective action. What limits should be placed on claims of proprietary information in this context?

12. Planetary Defence

12.1. Assessing the overall risk

72 Fladeland, Boley, and Byers 2019, arXiv:1911.1284073 Lauretta et al. 2019, Science, https://science.sciencemag.org/content/366/6470/eaay3544

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As was illustrated above, ‘Apophis’ will pass within 40,000 km of Earth in 2029.74 The 340-metre asteroid does not pose an impact risk, but should another asteroid of this size impact Earth, it would cause wide-spread regional damage.

The Earth is struck by thousands of small meteorites every year. Impacts by larger objects are much less frequent, yet the catalogue for objects that could cause significant damage is vastly incomplete (NASA, n.d.).

12.2. Preparing for action

12.2.1. DART

As discussed above, NASA will send a spacecraft towards the asteroid Didymos in July 2021 to test whether its ‘moonlet’ can be deflected.75

12.2.2. Could asteroid mining be used to enhance planetary defence, e.g. by re-tasking mining spacecraft as mass-drivers?

While completely unrestricted mining has the potential to redirect an asteroid onto an impact trajectory or produce dangerous meteoroid streams, mining applied to an asteroid on a known impact trajectory could be used as a deflection technique. This concept has been introduced earlier in a different context, and is often referred to as a mass driver.76,77 The idea is to mine surface material from the target asteroid and expel it periodically along or against the orbital track. Over time, the Δ v from each ejection will add up to give a net deflection that depends on the mining rate, the ejection speed (ve¿, the mass of the asteroid (Ma), and the time before impact.

We saw in section 2 that we can determine a Δ v for a given deflection and that the magnitude of the Δ v will depend on the lead time T. For mining, the necessary Δ v will not be reached instantaneously due to limitations of the mining process itself (the mining rate). As a result, material will need to be collected and ejected over a period of time. If we redefine T to be the time between the first Δ v and the date of impact, it can be shown that the optimal duration of mass ejection is half the lead time (T/2), with the lowest effective mining rate giving by

R ≈ 0.4 (M a / 109 kg) (T / yr )−2 (ve / 10 m s−1 )−1 kg s−1.

74 S. Chesley, 2006. “Potential impact detection for Near-Earth asteroids: the case of 99942Apophis (2004 MN 4)”. 229 Asteroids, Comets, Meteoroids, IAU Symposium, 215-228.75 A. Cheng et al. 2018. “AIDA DART asteroid deflection test: Planetary defense and scienceobjectives”. 157 Planetary and Space Science 27-35.76 Oneill et al. 198077 Friedman et al. 2004

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To put this into context, deflecting a 109 kg asteroid (around 120 m in diameter for a bulk density ρ=1200 kg m−3) with a 3 yr lead time and a ve=10ms−1 requires a mining rate of about 35 tonnes per day. The feasibility of this will depend on multiple factors, including the number of mining spacecraft used and the limitations of the extraction process. Higher ejection speeds reduce the required mining rate. The orientation of the asteroid and its spin can be further controlled through the ejection directions.

While a mass driver is not the most efficient deflection mechanism, should widespread space mining be realized, it may become the most convenient, especially if planetary defence is integrated into the design of mining spacecraft.

12.3. Who decides?

Who should be responsible for vetting the science, assessing the risks, and making decisions in an actual Earth-impact scenario? How can we maximize international cooperation to ensure a positive outcome? (Note that discussions of this general issue are also part of the literature on alien contact.) What if the action taken would result in the destruction of the asteroid: Could this be considered national appropriation (and therefore illegal) if the decision were taken by an individual state?

12.3.1. Individual states

The DART mission is led by NASA with some participation from the European Space Agency (ESA) and the Italian Space Agency.78 Although there is no risk that the moonlet will inadvertently be directed onto an Earth impact trajectory, the US did not seek approval from other states during the mission planning process. It did, however, consult with them, including by informing the Space Mission Planning Advisory Group (SMPAG), which is made up of representatives from 18 Space agencies.

In a situation where an asteroid is discovered to be on an Earth impact trajectory, the US or some other single state might well take it upon itself to mount a deflection mission. Legal support for unilateral action could be grounded in customary international law, with states being recognized – through specific rules such as the right of self-defence against armed attacks – as having an inherent right to protect themselves from major harm. The issue is not the existence of this right, but rather the rights of other states not to be exposed to the risk of a unilateral deflection mission going wrong. Suppose, for instance, that the deflection mission involved the use of a nuclear explosive device and only succeeded in fragmenting the asteroid while leaving at least one large fragment on an impact trajectory— as occurred in the 2019 Planetary Defence Conference tabletop exercise. Unfortunately, a unilateral deflection mission might be more likely than an internationally agreed and organized one, given the relative influence of militaries and space agencies within national governments.

78 A. Cheng et al. 2018. “AIDA DART asteroid deflection test: Planetary defense and scienceobjectives”. 157 Planetary and Space Science 27-35.

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International lawyers could provide arguments for why the risks posed to other states by a unilateral action require that the acting state consult with potentially affected states. They could, for instance, point to Article 9 of the Outer Space Treaty, with its requirement that “States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.” They could also point to the fact that, under the Outer Space Treaty (Art. 7) and the Liability Convention, the unilaterally acting state would be liable for any damage caused on Earth by a failed deflection mission.

But the arguments on the other side would almost certainly be stronger. A state’s right to protect itself against serious harm is a strong rule, arguably of peremptory (jus cogens) status that trumps other rules of international law. One can see this heightened normative status in the right of self defence as codified in Article 51 of the UN Charter, where it is explicitly recognized as an exception (one of two, with the other being Security Council authorization) to the general prohibition on the use of force in Article 2(4). Moreover, in the balance of risks, one of the risks (an Earth impact) will be real and evident, while the other risks (those associated with a unilateral action gone wrong) would be somewhat speculative and uncertain. Last but perhaps not least, there is a practical issue: How would other states stop a powerful spacefaring state that was intent on a deflection mission?

12.3.2. National Space agencies acting collectively

The ideal response to an asteroid on an Earth impact trajectory would be for national Space agencies to collectively determine the feasibility and risks of different mitigation options, decide on the best approach, and then implement it. As it happens, Space agencies are already working together on these issues through an International Asteroid Warning Network (IAWN) that reports to the Space Mission Planning Advisory Group (SMPAG). Both bodies were created at the recommendation of the UN Committee on the Peaceful Uses of Outer Space following the 2013 explosion of 17-metre diameter meteoroid above the Russian city of Chelyabinsk. The IAWN connects space agencies, observatories and other groups engaged in discovering, monitoring and physically characterizing the potentially hazardous NEO population; it also serves as a “clearing house” for all NEO observations and recommends criteria and thresholds for notification of an emerging impact threat. The SMPAG, which again is made up of representatives from 18 Space agencies, prepares for an international response to a NEO threat by exchanging information, developing options for collaborative research and mission opportunities, and conducting threat mitigation planning activities.

But again, whether national Space agencies would continue playing the lead role in an actual Earth impact scenario is unclear—because of the considerable influence of militaries. For this reason, it might be desirable for states to adopt a treaty or declaration indicating that the Space agencies will remain in charge.

12.3.3. UN Security Council

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Another institutional option for dealing with an Earth impact scenario is the United Nations Security Council. Under Article 24 of the UN Charter, all 194 member states of the United Nations have conferred on the Security Council “primary responsibility for the maintenance of international peace and security”. They have done so “to ensure prompt and effective action” and agreed that, “in carrying out its duties under this responsibility”, the Security Council “acts on their behalf”. The member states have also agreed, under Article 25 of the Charter, “to accept and carry out the decisions of the Security Council”.

The powers of the Security Council, which is made up of five permanent members (US, Russia, China, UK, France) and ten non-permanent members elected for two-year terms, are considerable. They extend to authorizing the use of armed force against and within the territory of a sovereign state, if the Security Council determines the existence of a “threat to international peace and security”. There is little question that the Security Council could assert primary authority to deal with an Earth impact scenario and that, under international law, all national governments would have to both defer to and work with it. The Security Council could also, unquestionably, authorize the use of a nuclear explosive device (NED). There is one potential impediment to the Security Council’s involvement, however, and that is that each of the five permanent members holds a veto over Council decision-making. It is therefore conceivable that the US, Russia, or China might block Security Council action and mount a unilateral deflection mission instead. Or, more optimistically, that the Space faring states might agree in advance on an alternative collective mechanism, and therefore avoid the Security Council route altogether.

12.4. Legality of different methods

Involving the UN Security Council could also make a difference in terms of clearly legalizing approaches that might otherwise be legally controversial, such as the use of nuclear explosive devices (NEDs) – as described above.79

Article 4(1) of the Outer Space Treaty states: “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.” Note that Article 4(1) does not prohibit the launch of nuclear weapons into space. Nor does it say anything about nuclear explosive devices, as distinct – in use if not design – from nuclear weapons.

But while the Outer Space Treaty does not pose an obstacle to the use of a NED against a NEO, Article 1(a) of the 1963 Limited Test Ban Treaty reads:

Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control:

79 On the legal issues concerning NEDs, see generally: James A. Green. “Planetary Defense: Near-Earth Objects, Nuclear Weapons, and International Law.” Hastings Int'l & Comp. L. Rev. 42 (2019): 1.

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(a) in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas; …

Note that the prohibition is not limited to nuclear weapon tests but encompasses “any other nuclear explosion”, including in Space. Russia, the US and UK are all parties to the Limited Test Ban Treaty; France, China, and India are not. The Limited Test Ban Treaty thus poses a legal obstacle to the use of a NED by the two states more likely and capable to attempt an emergency NEO deflection: Russia and the US.

It may be possible to argue that a state’s inherent right to protect itself against serious harm, including but extending beyond the right of self-defence against and armed attached, is of a peremptory (jus cogens) nature and therefore trumps the Limited Test Ban Treaty in this respect. But more clearly, and less controversially, the UN Security Council could always remove the obstacle posed by the Limited Test Ban Treaty by adopting a resolution authorizing the use of a NED.

Apart from the legal issues, NEDs raise several security issues. First, a nuclear explosive mounted on a rocket clearly constitutes “dual use” equipment that could also be employed, in different circumstances, as either an ICBM or an anti-satellite weapon. Developing and maintaining a NED capability therefore contradicts global efforts to contain the expansion of nuclear weapons. Second, it also contradicts global efforts to prevent the proliferation of nuclear weapons and their components, along with missile technologies to deliver them.

13. Policy options 13.1. National vs. international regulation and oversight

Should states be allowed to license and regulate asteroid mining companies on their own? Is an international mechanism needed?

Under the UN Convention on the Law of the Sea, a coastal state has jurisdiction over foreign ships whenever they enter its ports.80 This jurisdiction, called ‘port state authority’, is different from ‘flag state’ authority – with ‘flag state’ authority being analogous to the jurisdiction over spacecraft that rests in a ‘launch state’. Following the ‘port state’ model, national governments could assert jurisdiction over Space mining companies whenever equipment, personnel, or funds enter their territory, even if the companies are incorporated in flag of convenience states.

13.2. Soft law: The Hague Building Blocks

In the disciplines of international law and international relations, the term “soft law” is generally used for resolutions, declarations, guidelines, and other written agreements that are not meant to be legally binding.81 Some of these documents, if negotiated, adopted or otherwise endorsed by states, can constitute “subsequent practice” for the purpose of treaty interpretation and/or “state

80 T.L. McDorman. 1997. “Port state enforcement: A comment on Article 218 of the 1982 Lawof the Sea Convention. 28 Journal of Maritime Law & Commerce 305.

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practice” for the purposes of customary international law. Others, developed by experts from industry, non-governmental organizations, and/or academia, do not contribute directly to the making or changing of international law but can influence how states approach the issues—including the initiation of negotiations on, and the content of, new binding international law.

The Hague Building Blocks for the Development of an International Framework on Space Resource Activities (“Building Blocks”) were developed by experts from national space agencies, industry, non-government organizations, and academia.82 For this reason, they have to be seen as a non-state contribution. However, they can still constitute an important soft law contribution insofar as they offer a “groundwork for international discussions on the potential development of an international framework, without prejudice to its form and structure.” 

Adopted in November 2019, the Building Blocks begin with a series of principles, including that the international framework should be consistent with international law, designed to adhere to the principle of “adaptive governance” by “incrementally regulating space resource activities at the appropriate time,” contribute to sustainable development, “[p]romote and secure the orderly and safe utilization” of Space resources; and take into “particular account” both the needs of developing countries and the needs of science. Moreover, the international framework should provide that “Space resource activities shall be carried out for the benefit and in the interests of all countries and humankind irrespective of their degree of economic and scientific development.”

The Building Blocks identify a need to ensure the acquisition and widespread recognition of rights over extracted mineral sources. In doing so, they come down clearly against the mandatory sharing of economic benefits with less developed countries, with Building Block 13 reading, in part:

13.1 Bearing in mind that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and humankind, the international framework should provide that States and international organizations responsible for space resource activities shall provide for benefit-sharing through the promotion of the participation in space resource activities by all countries, in particular developing countries. …13.2 The international framework should not require compulsory monetary benefit-sharing. 13.3 Operators should be encouraged to provide for benefit-sharing. 

The Building Blocks also address issues such as the attribution of “priority rights”, i.e., the right of a space mining entity to operate exclusively in a particular area for a particular period of time,

81 Abbott, Kenneth, and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (3) (2000), 421–456; Chinkin, Christine. “The Challenge of Soft Law: Development and Change in International Law.” The International and Comparative Law Quarterly 38 (4) (1989), 850–866; Shelton, Dinah. “Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System.” (Oxford University Press, 2003). 82 https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-of-air-space-law/the-hague-space-resources-governance-working-group

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as well as the establishment of “safety zones” around mine sites. They even anticipate issues such as the question of jurisdiction and control over space-made products used in space resource activities. With regards to this latter issue, Building Block 6 recommends: “The international framework should provide that States have jurisdiction and control over any space-made products used in the space resource activities for which they are responsible.”

The Building Blocks specifically identify some but not all of the risks associated with space mining that are identified in this discussion paper. Building Block 10 reads:

Taking into account the current state of technology, the international framework should provide that States and international organizations responsible for space resource activities shall adopt appropriate measures with the aim of avoiding and mitigating potentially harmful impacts, including: a) Risks to the safety of persons, the environment or property; b) Damage to persons, the environment or property; c) Adverse changes in the environment of the Earth, taking into account internationally agreed planetary protection policies; d) Harmful contamination of celestial bodies, taking into account internationally agreed planetary protection policies; e) Harmful contamination of outer space; f) Harmful effects of the creation of space debris; g) Harmful interference with other on-going space activities, including other space resource activities; h) Changes to designated and internationally endorsed outer space natural or cultural heritage sites; i) Adverse changes to designated and internationally endorsed outer space sites of scientific interest. 

Building Block 11.1 also recommends that: “The international framework should provide that States and international organizations shall require the conduct of a review prior to a decision to proceed with a space resource activity to ascertain that such an activity is carried out in a safe manner to avoid harmful impacts.”  In other words (and with no pun intended), an “impact assessment” should be part of any space mining proposal.

The Building Blocks are, for the most part, helpful and uncontroversial. But they do, again, clearly pick a side on the one legal dispute currently underway with regards to Space mining, namely the existence (or not) of private ownership rights with regards to extracted resources. As an exercise in soft law, the position taken in the Building Blocks could be influential—assisting the efforts of the US and Luxembourg; and hindering, perhaps even deterring, widespread and concerted opposition by developing states—of the kind that took place during the development of the deep seabed mining regime.

However, there is nothing to stop other groups – of states, international organizations, non-governmental organizations, and/or academics – from negotiating and adopting their own soft law instruments. Soft law is influential because it is persuasive, offering solutions to problems

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that can easily be taken up in states as they engage in the making and changing of binding international law.

13.3. Convene a review conference of Moon Agreement

The Hague Building Blocks encourage the negotiation of an international regime on space resource utilization, and the most obvious mechanism for initiating such a negotiation is already set out in a multilateral treaty currently in force.

Article 18 of the Moon Agreement reads:

Ten years after the entry into force of this Agreement, the question of the review of the Agreement shall be included in the provisional agenda of the General Assembly of the United Nations in order to consider, in the light of past application of the Agreement, whether it requires revision. However, at any time after the Agreement has been in force for five years, the Secretary-General of the United Nations, as depository, shall, at the request of one third of the States Parties to the Agreement and with the concurrence of the majority of the States Parties, convene a conference of the States Parties to review this Agreement. A review conference shall also consider the question of the implementation of the provisions of article 11, paragraph 5, on the basis of the principle referred to in paragraph 1 of that article and taking into account in particular any relevant technological developments.

13.4. Developing capacities for planetary defence

Effective planetary defence will require the development of a wide range of capacities, from improved identification of risks, to safe and effective means for asteroid deflection. While the way in which individual states can contribute will vary greatly, it is necessary to have a planned, tested, and internationally organized impact risk response. The 2019 Planetary Defense Tabletop Exercise brought this into sharp relief. Upon detection, how do we rapidly improve our understanding of the asteroid’s orbit? Can we rendezvous with the asteroid? If so, who will build the rendezvous spacecraft and who will launch it? If a deflection is needed, what method should be used? Who takes responsibility? How quickly can we agree upon a course of action and how quickly can the equipment be built? In which circumstances do we allow the asteroid to strike Earth, and what if it is likely to strike a country without launch capabilities?

14. Canada’s role

Canada sees planetary defence as important enough to task one of its few Space assets to search for Near Earth Objects (NEOSSat).83 Now, given the need to have tested and launch-ready planetary defence assets ready for a possible impact emergency. Canada should consider building a small automated spacecraft, placing it cis-lunar orbit in advance of any emergency, and testing it by rendezvousing with no-risk near Earth asteroids. Equipment such as

83 Unfortunately, NEOSSat has not met the performance specifications needed for its NEO detection mission. Nonetheless, the point remains that such observations are seen of significant value.

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retroreflectors and radio beacons could be placed on the asteroids to enable precise tracking of them. This would allow long-term monitoring of their orbital evolutions—science that would contribute greatly to humanity’s knowledge of asteroid behaviour and therefore planetary defence.

Canada could also contribute by leading the development and adoption of a multilateral decision-making protocol on NEOs, either as a soft-law declaration, a binding treaty, or a UN Security Council resolution.

On the subject of space mining, Natural Resources Canada’s 2019 Canadian Minerals and Metals Plan (CMMP) recommends: “The federal government should develop a policy approach for mining new frontiers (extreme climates, deep mining, offshore, space) to foster investment and economic development.” We agree, though one could usefully add the following words to the end of the sentence: “in a sustainable manner that supports planetary protection, planetary defence, and the preservation of scientifically, environmentally or archeologically important materials and locations.”

Natural Resources Canada seems to favour the adoption of national legislation in support of private ownership rights over extracted Space resources. The CMMP states:

Other economies such as the United States, Luxembourg, and Australia are taking steps to establish themselves as early movers in space mining. This can help attract capital and talent, and facilitate the success of private companies in this new market. Early action from Canada regarding mining new frontiers would demonstrate leadership, signal that Canada welcomes innovation and investment, and support the transfer of technology between sectors.

We recommend caution here, since the issue of Space mining could create diplomatic divisions between wealthy space-faring states and the rest of the international community. Following the lead of US and Luxembourg could also have negative safety and environmental consequences, for instance, by increasing the risk of flag of convenience states emerging in this area.

At the moment, Canada is well-positioned to contribute diplomatically on the issue of Space mining. We are a “middle power” with advanced Space science and technology, most visibly through the Canadarm on the International Space Station, and we cooperate productively with other Space faring states. Most recently, Canada has partnered with the US in the development of the Lunar Gateway. We are also an associate member of the European Space Agency.

Canada has considerable experience leading successful multilateral negotiations. Canadians chaired the drafting committee of the UN Convention on the Law of the Sea, the Ottawa Declaration on the Arctic Council, the Ottawa Convention on Anti-Personnel Landmines, the Rome Statute of the International Criminal Court, and – until recently – the UN Committee on the Peaceful Uses of Outer Space. And these are just examples.

Clearly, international negotiations on the issue of Space mining are needed; negotiations that include non-space faring and developing states. But to lead diplomatically, Canada will have to

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position itself in the middle: between the US and Luxembourg on the one side, and opponents of commercial Space mining on the other. The optimal outcome is likely some kind of international licencing and revenue-sharing regime, similar to the renegotiated Part XI of the UN Convention on the Law of the Sea, which again, allows for the participation of private companies and is proving quite successful.

Canada should explore the possibility of holding an ad hoc negotiating conference on the Space mining issue, as it did, successfully, for the Ottawa Declaration on the Arctic Council and the Ottawa Convention on Anti-Personnel Landmines. Exploring the possibility might entail 2-4 years of consultations, briefings, workshops, and perhaps even a model negotiating conference between non-governmental and ex-governmental experts from around the world.

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