Authors: Nick Sutton & Chloe Gibbons
With the USA re-opening their space programme both on a government backed basis and with private companies making significant strides, such as SpaceX launching its Falcon rockets, there is a lot happening in the global space sector.
Whilst these developments should be celebrated for their leaps forward for humanity and science, for the legal sector and regulators, the expansion of our world into the wider cosmos poses a number of questions and challenges to which the global legal community has yet to tackle.
One area of investment that seems to have gained less publicity is the growing interest in space mining. Nations and private companies are switching on to the availability of space resources, most notably those found on the moon and mars, and are seeking to develop technologies to extract and profit from their treasures. The activities taking place in the wild west of space are gaining momentum and are far more advanced than we may realise.
In 2019, the European Space Agency (ESA) announced its intention to mine lunar soil, known as regolith, and agreed a one-year contract with ArianeGroup to prepare for a mining mission. In 2020, NASA announced that several companies had won contracts to mine the moon with robotics firm, Lunar Outpost bidding just $1 for the work. These huge agencies are paving the landscape for space mining but before we lose ourselves in the dream of space ‘bling’, we need to ask ourselves, who really owns space and who is allowed to extract and profit from its mighty pastures?
The most recent space legislation is the 1967 Outer Space Treaty, which more than 100 countries have signed up to. The Treaty states that the ‘exploration and use of outer space shall be the province of all mankind’ and ‘is not the subject to national appropriation by claims of sovereignty, by means of use or occupation, or by any other means’. This might explain why so many people took umbrage when Neil Armstrong placed the US flag on the moon, symbolically claiming ownership over something that was so far out of reach from the rest of its ‘owners’. It follows then, that the moon, the sun, the planets and all the comets and asteroids that are potentially over-flowing with ‘space diamonds’ and other precious and highly coveted materials, belong to all of humanity and no country can lay claim to any part of them – at least for now.
If the ESA or NASA successfully mine lunar soil, who owns it? ESA or NASA because they discovered it, the countries and Governments they represent, or all humankind? The position is less than clear.
Before we even begin to extract and exploit space, it is essential that policy, regulation and legislation catches up with technology and there must be a common understanding of the parameters that we, as global civilisation and the legal community, subscribe to going forward.
Are we likely to see more corporates and private investors challenge tenants of the Treaty given the value of commodities and assets at stake?
Has the mindset and global countenance shifted from 1967 when the possibility of going into and exploring space was only something that most could fathom as being a venture capable of being undertaken by Governments? Have we now shifted to a more privatised model and would most people be comfortable in giving private companies the incentive to advance into space for the benefit of humanity using the fruits of space rocks?
Most importantly, there must be a collaboration of all nations to decide how we share the treasures that we, as a single human race, discover amongst the stars, not only so that we can all benefit as our species advances into outer space, but to prevent a colonial-like take-over of what is currently common-land. We should not let history repeat itself in space in ways that we now find unacceptable on earth.
In 2015, the United States passed the Commercial Space Launch Competitiveness Act, which allows for the ownership of resources extracted from asteroids and other celestial bodies. This act is seen as a move towards establishing a legal framework for the exploitation of space resources but only deals with the issue from a national perspective and there is a risk that disputes could escalate into international conflicts.
The story of Jeremiah Heaton provides an interesting read. In June 2014, the 38-year-old farmer from West Virginia set off to Bir Tawil, the only terra nullus (unclaimed land) on earth, an 800-square-mile sliver in between Egypt and Sudan at the bequest of his daughter, Emily, who had asked her father if she could become a princess. After a 14-hour expedition, Jeremiah eventually reached the unclaimed territory, planted a flag and announced on social media “so it be proclaimed that Bir Tawil shall be forever known as the Kingdom of North Sudan. The Kingdom is established as a sovereign monarchy with myself as the head of state; with Emily becoming an actual princess”.
Jeremiah’s actions sparked an angry backlash from many who saw his actions not dissimilar to 21st-century imperialism, particularly as the portrayal of land as “unclaimed” or “undeveloped” was fundamental to the centuries of merciless conquest. Jeremiah maintains that his story is about familial love and dreams rather than colonialism and hopes to transform the nation into an agricultural and technology hub that will ultimately benefit all humankind. There are multiple claimants to the land and while the UN does not appear to recognise the nation yet, Jeremiah has stated on the kingdom’s “website” that North Sudan has applied for United Nations Observer Entity status.
Arguably, this story demonstrates an interesting paradox to the colonialism as we understand it; a human-centric claim for the benefit of all of humanity. Could this and should this be the basis for the legal system and jurisprudence that govern how we explore and exploit space rather than a nation-centric approach?
While there may not be any inhabitants to dispute land ownership with, there are still the issues of ownership and enforcement. With no sovereign authority in space, it is difficult to enforce any kind of legal agreement or ownership claim. This raises questions about how disputes over space resources would be resolved, and how the international community would ensure that the exploitation of space resources is conducted in a safe and responsible manner.
In conclusion, the legal issues surrounding space resource ownership are complex and contentious. While some nations have established their own national laws allowing for the ownership of space resources, there is no international agreement on the issue. The lack of a clear legal framework for the exploitation of the outer cosmos is yet to be established…
Nick is a commercial litigator who specialises in insurance law. He has almost 15 years’ experience in dispute resolution and spent over 10 years in a UK Top 20 and Legal 500 Tier 3 insurance litigation practice. Nick has acted for a wide range of businesses, from sole traders and SMEs, to growing national companies and global corporates, in both the private and public sectors.
For many years, he has worked with household business names in the retail, supply chain and warehousing and logistics sectors, along with global composite commercial insurers.
Having acted for both policyholders and insurers as claimant and defendant, Nick has a strategic insight and tactical advantage when litigating and conducting negotiations, and always seeks to achieve the most commercially favourable outcome. He has taken countless cases to trial and won over the last 10 years, saving and recovering millions of pounds in damages and costs on behalf of his clients.
Chloe is a trainee solicitor in the Commercial Dispute Resolution Department and is a member of the Space Specialist Team within Freeths. She has completed seats in Commercial, Construction and Engineering and a secondment focusing on employment matters. Prior to starting her training contract, she was a legal assistant in the Real Estate team.
Before joining Freeths, Chloe completed her Law with South-East Asian Law degree at the University of Nottingham and the National University of Singapore, and she is currently completing her Solicitor Qualifying Exams at the University of Law.
Having studied Aviation law during her time in Singapore and a love of sci-fi, Chloe has both a personal and professional passion for all things aerospace.