‘There’s Gold in them thar Hills’… or Asteroids: The Legality and Ethics of Space Mining

Reading Time: 5 minutes

Authors:  

Dr Julia Muraszkiewicz | Head of Programme Against Exploitation and Violence
Dr Zachary J. Goldberg | Ethics Innovation Manager

Date: 12 April 2023

The era of commercial space mining is here.

Minerals such as lanthanum, neodymium, and yttrium (it’s ok if you have to look them up) – which are all critical for our electronic gadgets – also exist in space. As portrayed in Netflix’s Don’t Look Up, companies are hungry to get digging. And with that comes a whole host of open questions, ranging from the legal to the ethical.

The law is trying to address some of these questions. The prevailing treaty for international space law is the Outer Space Treaty of 1967, and it prohibits individual nations from seizing celestial bodies such as the Moon or asteroids. So no, we cannot stick our flag on Mars and call it our own.

However, the treaty does not absolutely prohibit owning properties once they are extracted from a celestial body. Some legal commentators go so far as to say that sections of the treaty imply that such use is allowed. But as always with international (or any) law, there is plenty of ambiguity, and so whether space mining is legally permitted remains unsettled.

Tellingly, to date, no one has confronted the United States or Japan for taking scientific samples from space, albeit they were used for science and who knows what would happen if they were taken for profit. The United States has always argued that the Outer Space Treaty allows commercial resource extraction. And so, the USA unsurprisingly adopted a space resources law, recognizing the property rights of private companies and individuals to materials gathered in space. The law has a dreary name that would disappoint any reader of science fiction – The Space Resource Exploration and Utilization Act of 2015 – but it does provide American companies engaging in commercial recovery of space resources with a right to possess, own, transport, use and sell the space resources obtained. The US is not alone; it is joined by one of Europe’s smallest states that has always had big ambitions to lead and become an advanced innovative economy. Luxembourg passed a law (2017) that says private companies can be entitled to the resources they mine in outer space, but they can’t own celestial bodies. In similar vein, Japan passed the Law for the Promotion of Commercial Activities Related to the Exploration and Exploitation of Space Resources.

The appetite for space mining is growing and the corresponding legislation is mushrooming, but mainly at a national level. It would appear that on the whole you can keep what you mine. But what happens if two companies want to mine the same area, who has the right then? If disagreements intensify does the military step in to escalate or resolve the conflict? Can a company actually own any part of space? This question is especially poignant if we remember that one of the established principles of space law is that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind. What if a company discovers something that would benefit humanity and be priceless for all humankind—What is their legal obligation then? A sole asteroid of platinum has been valued at circa $50 billion. Imagine the impact our economy and our legal system.

Beyond questions of law, questions emerging from the field of environmental ethics take on an engaging significance concerning mining in space.  One of the fundamental questions we can ask about the space environment, the discussion of which directly influences whether and how space mining ought to be conducted, concerns the value of the natural environment. It is widely held, at least since the Enlightenment, that human life has intrinsic value. That is, human life is valuable simply in its own right and, as a direct consequence, certain kinds of treatment of humans initiate ethical obligations or prohibitions. In contrast, possessing value owing only to the ability to help fulfil a particular purpose is referred to as instrumental value. For example, tools are a perfect example of things that are instrumentally valuable because they are means to some end and have no value beyond this function. Where does the natural environment fit into this categorisation? Does the environment have intrinsic or instrumental value? That is, is it valuable in its own right or valuable only as a means to some end (e.g. providing materials for human survival or comfort)? The deep-ecology movement that started in the 1970’s is a well-known example of a theory that promotes the view that all living things are alike in having value in their own right, independent of their usefulness to others.

Even if we conclude that all living things have intrinsic value, space mining is about rocks and minerals. Nevertheless, even if it were possible to mine precious materials in space without disturbing living things, there are still ethical questions we must ask. The places where mining would occur—the moon, asteroids, or Mars—are, what environmentalists call, pristine. They have never, or in the case of the moon only occasionally, been touched by humans. Ought we leave pristine environments as they are? Do these places possess an aesthetic value worth preserving such that we are ethically obligated not to disturb them? Given our track-record on earth towards preservation, we might want to literally tread lightly in space environments in order not to destroy or sully them.

Furthermore, the rocks and minerals mined in space could potentially contain fossils of microbial life. Discovering alien life, even in microbial form, would be a monumental scientific discovery. It could provide critical evidence about both the environment in which it is found, but also about the evolution of Earth, how it transformed into a habitable planet, and potentially, how it may turn into an un-habitable one. Are we certain that the mining processes undertaken in space will proceed with sufficient caution to identify microbial fossils? How can we take steps to balance commercial interests of mining with scientific interests of space discovery?

Finally, space mining does not only elicit ethical concerns. It may bring about crucial ethical opportunities as well. If done legally and ethically, space mining could reduce pressure on Earth’s ecosystems. Historically, mining on earth has significantly damaged the environment. Since the human appetite for electronic devices that need rare minerals is unlikely to decrease, it may make the terrestrial environment more sustainable if we can look off world for the resources we desire or need.

However, doing so requires legal and ethical experts to work together with governments and mining companies to ensure ethical opportunities do not quickly turn into ethical disasters.

 

About the Authors:

 

Dr Julia Muraszkiewicz, Head of Programme for Human Trafficking and Human Rights at Trilateral Research and Space Law Course Lead at the University of Amsterdam. Julia is an international legal expert who seeks to find intelligent and innovative ways to think about and analyse problems facing international law, and of course, address them.

 

 

Dr Zachary J. Goldberg, Ethics Innovation Manager at Trilateral Research. Zachary leads work translating ethical theory and ethical standards into practical steps achieving sustainable impact and responsible innovation. He oversees and carries out ethics services for public and private sector clients and our in-house tech team on the ethics of AI, responsible AI, explainable AI, ethics-by-design, technology and information ethics, research ethics and AI regulations in the EU and UK.

 

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