Utilising Natural Resources in Space: Charting the Legal Cosmos

Summary:

The utilisation of the abundance of resources in the cosmos is fast transitioning from speculative fiction to a tangible reality.

This new dawn in space commercialisation is underpinned by technological advancements, decreasing costs, and a growing global demand for natural resources and energy (coupled with supply-side constraints); thereby increasing the commercial appetite for missions aiming to utilise natural resources in space. We should, therefore, expect to see a significant number of exploratory and novel missions in the short term which will lay the groundwork for much larger commercial missions in the medium-longer term.

This article highlights the legal considerations of two distinct case studies:

• Space mining and resource extraction – which focuses on the extraction of precious metals and valuable minerals from celestial bodies such as the moon and asteroids. Innovations in robotics, artificial intelligence, and launch technologies have made such missions a practical possibility.
• Space-based solar power (SBSP) – which offers a renewable energy solution by collecting solar energy in space, where it can be converted and transmitted to Earth without atmospheric losses, providing a continuous and abundant energy supply. This technology involves deploying large solar arrays in space to convert sunlight into energy, which is then beamed wirelessly to Earth. SBSP technology is being rapidly developed, and being actively considered as part of a strategy to enhance energy security and contribute to achieving net zero carbon emission targets.

Both space mining and SBSP present significant opportunities but also practical challenges – the former presents risks relating to traversing airspace (and increasingly congested orbits) both in relation to launch and re-entry. Whereas, when considering SBSP, for example, there are risks in placing assets in orbit, assembling (and manufacturing) assets in orbit, and on-orbit maintenance and operation, particularly given increasing congestion.

This raises the risk profile of such missions, and is likely therefore to affect the licencing conditions that may be imposed relating to the launch and operation of such missions by the Civil Aviation Authority (CAA). This may affect the operator’s exposure to potential liabilities (in terms of number and quantum) and may result in increased costs needed to be expended to mitigate such risks (for example, via increased insurance premia, and/or via a form of self-insurance). These elements may, in turn, affect the commercial palatability and, in some cases, commercial viability of such innovative missions.

For a high-level overview of potential liabilities resulting from space activities and the consultation that the UK Space Agency is carrying out in relation to orbital liability, insurance, charging, and sustainability at the following link: UK Space Agency undertakes consultation on orbital liabilities, insurance, charging and sustainability. 

While international space law such as the Outer Space Treaty, the Moon Agreement and the Artemis Accords lays the foundational groundwork for the regulation of the utilisation of natural resources in space, property rights relating to extracted resources have not been directly addressed in international law. Whilst some national regimes that have legislated to provide greater clarity from a legal perspective in this area, such as the US, the UK has not yet, however, addressed legal ambiguity in this area in its national legal framework, which is primarily comprised of the Outer Space Act 1986 and the Space Industry Act 2018.

There is therefore a degree of legal ambiguity surrounding missions launching from the UK (or UK facilities) with the aim of utilising natural resources in space, which contributes to the risks relating to such missions. This could ultimately affect the commercial palatability of such missions given that investors and financiers may not be able to fund such missions if, for example, the ownership of the output of the mission is unclear. Whilst such ambiguities or gaps are not in themselves prohibitive with respect to relevant missions launching from the UK, they do also give rise to potential risks of dispute relating to, for example, the ownership and use of resources extracted in space. Legal advice should therefore be taken in relation to such missions at an early stage (but, in any event, in advance of launch).

The UK Government has committed to undertaking a full Post Implementation Review (PIR) of the Space Industry Act 2018. The PIR began on 1 September 2023 and should have concluded at the end of March 2024. The outcome of the PIR will form part of a broader review of the space sector regulatory environment being undertaken by the Department for Science, Innovation and Technology (DSIT). The PIR will also consider the outcome of the consultation which was run by the UK Space Agency in relation to orbital liabilities, insurance, sustainability, and charging addressed in my previous article. The PIR provides an opportunity to the UK Government to consider gaps which would benefit from new or amended legislation, and this is an area that should be considered as a priority. To the extent that the UK legislates (or other national regimes legislate or have legislated), however, this will only be the starting point, as legislative regimes will need to evolve as the missions launched become more developed and diverse in nature.

Please read on for further detail relating to such novel missions, and the potential risks relating to such missions and how these may be mitigated.

BACKGROUND AND CONTEXT

The democratisation of space access through reduced costs

The barriers to entry for space missions are lowering due to a reduction of launch and operation costs. Over the past decade, innovations in commercial rocket technology have, for example, significantly reduced the costs of launching to Low Earth Orbit (LEO). As a result, space has moved beyond the exclusive domain of global superpowers and large multinational firms and is becoming more accessible for a wider range of private entities and commercial actors. Innovations such as the development of reusable launch systems and rocket components, are pivotal in making missions aimed at exploiting natural resources increasingly feasible and commercially viable for new entrants.

Groundbreaking strides in technology including AI and robotics

Technological advancements in artificial intelligence and robotics have resulted in significant leaps forward in on-orbit servicing, assembly, and manufacturing. With recent space missions demonstrating capabilities such as on-orbit servicing, debris removal, and the construction of orbital infrastructure. Initiatives such as NASA's On-orbit Servicing, Assembly, and Manufacturing 1 and 2 (OSAM-1 and OSAM-2) highlight the development of robotic technologies capable of autonomously manufacturing and assembling space hardware, components, and tools, employing advanced techniques like 3D printing. These technological advancements are likely to open new avenues for the commercial utilisation of space resources.

Pressure on Earth's resources

The strain on Earth’s finite resources and the ever-growing demand for abundant and sustainable energy sources, compels us to look towards the skies (particularly where there are efficiencies to be derived, and/or where there is a limited supply on Earth). As global demand continues to grow, coupled with the reduction in costs of space missions and regulatory efforts, resource extraction in the cosmos offers a promising alternative with potential to usher in a new era of resource abundance that could have implications on global markets and the prosperity of civilisation.

MINING IN THE COSMOS: THE MECHANICS AND LEGALITIES OF SPACE MINING

The vast potential of mining in space

The resources in the inner solar system are abundant compared with those on Earth. For example, one large metallic asteroid “16 Psyche’, is thought to contain enough iron and nickel to last humans for millions of years at current consumption rates. One NASA study suggests the asteroid belt could be worth some 700 quintillion dollars. However, the vast distances from Earth, along with the significant travel times and required energy consumption, are currently prohibitive of the exploitation of these resources in the near future. Despite this, there exists a group of more accessible celestial bodies known as Near-Earth Objects (NEOs). In addition to the moon, these asteroids, due to their favourable orbits, require considerably less energy for spacecraft to reach from Earth, making them the most likely candidates for initial space mining missions.

How space mining works

Space mining technology is still in the early stages of development. It leverages advanced robotic technologies to tap into the wealth of minerals and precious metals found on celestial bodies. At the heart of these operations are sophisticated robotic spacecraft and mining equipment, engineered to endure the harsh realities of space— including extreme temperatures, cosmic radiation, and the challenge of low gravity. These autonomous machines are designed to navigate difficult terrains, perform drilling operations, and analyse collected samples without human intervention. The objective of such mining missions is to extract valuable resources, such as platinum and palladium, widely used in electronics, jewellery, and medical equipment. Additionally, the water, currently found on the moon, can be broken down into hydrogen and oxygen, essential components for rocket propellants , which could facilitate a lunar space station allowing for re-fuelling and launch in zero-gravity; thus, better enabling onward exploration.

A notable example of recent space mining missions is the Hayabusa2 mission, launched by the Japan Aerospace Exploration Agency (JAXA), which was the first mission to deploy and operate rovers on the surface of an asteroid, and the first mission to successfully return carbonaceous asteroid material to Earth.

While these endeavours have been primarily scientific in nature, numerous entities are actively planning or expressing interest in the commercial potential of space mining, which raised questions as to the legality of such activities, who owns the resources extracted, and how such resources can be exploited.

Sovereignty and property rights in the cosmos

Space law is characterised by principles of freedom and non-appropriation. The Outer Space Treaty (OST), adopted in 1967, the foundational text of international space law, establishes that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty.” This principle is important, ensuring that space remains open for peaceful exploration and use by all nations. The OST further stipulates that the activities of non-governmental entities in outer space must be authorised and continuously supervised by the appropriate State Party to the Treaty. However, the OST contains ambiguities; while it explicitly prohibits the ownership of celestial bodies, the Treaty does not definitively address, for example, the ownership and use of extracted resources in space.

The Moon Agreement, signed in 1979, expands on the principles of the OST by designating the Moon and its resources as the “common heritage of mankind.” Importantly, the Moon Agreement states, at Article 11, that “neither the surface nor the subsurface of the moon, or any part thereof or natural resources in place shall become property of any State, international intergovernmental or non-governmental organisation, national organisation or non-governmental entity or of any natural person” but does envisage that the parties to the Moon Agreement will establish an international regime to govern exploitation or natural resources of the moon. The Moon Agreement has, however, seen limited adoption, however, with fewer than twenty nations (largely non-spacefaring nations) ratifying the agreement, reflecting concerns about its restrictive implications for utilisation of resources in space. The UK and US have not, for example, ratified the Moon Agreement.

The 2020 Artemis Accords, initiated by NASA in collaboration with seven other founding nations (including the UK), are a series of non-binding multilateral statements, and represent a landmark step towards enhancing the governance of space exploration and utilisation. Distinctively, the Artemis Accords extend beyond traditional treaties by explicitly clarifying that the extraction of space resources does not inherently constitute national appropriation for the purposes of the OST and affirm that any such activities should adhere to the OST principles. The Artemis Accords do not, however, explicitly address property rights in relation to resources extracted from the moon or other celestial bodies.

Some jurisdictions have sought to address legal ambiguity in this area via national legislation. For example, the US has introduced the U.S. Commercial Space Launch Competitiveness Act, also known as the Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015, which represents a significant development in this area. This Act updated the United States' commercial space legislation, explicitly allowing U.S. citizens to engage in the commercial exploration and exploitation of space resources, including the right to own materials they collect in space. However, it's important to note that while the Act acknowledges the rights of U.S. citizens to own space resources, it does not purport to claim sovereignty over any celestial bodies in alignment with the principles of the OST.

The UK has not yet, however, addressed legal ambiguity in this area in its legal framework relating to space activities which is primarily the Outer Space Act 1986 and the Space Industry Act 2018.

There is therefore a degree of legal ambiguity relating to missions launching from the UK (or UK facilities) with the aim of extracting natural resources in space, which contributes to the risks relating to such missions. This could ultimately affect the commercial palatability of such missions given that investors and financiers may not be able to fund such missions if the ownership of the output is not certain. Whilst such ambiguities or gaps are not in themselves prohibitive with respect to relevant missions launching from the UK, they do also give rise to potential risks of dispute relating to, for example, the ownership and use of resources extracted in space. Legal advice should therefore be taken in relation to such missions at an early stage (but, in any event, in advance of launch).

The UK Government has committed to undertaking a full Post Implementation Review (PIR) of the Space Industry Act 2018. The PIR began on 1 September 2023 and should have concluded at the end of March 2024. The outcome of the PIR will form part of a broader review of the space sector regulatory environment being undertaken by the Department for Science, Innovation and Technology (DSIT). The PIR will also consider the outcome of the consultation which was run by the UK Space Agency in relation to orbital liabilities, insurance, sustainability, and charging addressed in my previous article. The PIR provides an opportunity to the UK Government to consider gaps which would benefit from new or amended legislation, and this is an area that should be considered as a priority. To the extent that the UK legislates (or other national regimes legislate or have legislated), however, this will only be the starting point, as legislative regimes will need to evolve as the missions launched become more developed and diverse in nature.

Potential legal risks and liabilities resulting from space mining missions

Inherent risks of operation and launch

There are inherent risks relating to traversing airspace and increasingly congested orbits; notably the re-entry/de-orbiting of some or all of the assets launched along with resources extract. Missions relating to space mining and resource extraction will need to be well-planned to ensure a clear route to outer space on launch and a clear route of re-entry on its return considering increasingly congested orbits (particularly LEO) with both active satellites and debris, and an increasingly busy airspace within the Earth’s atmosphere.

These inherent risks will impact on the risk profile of the mission, which will be considered by the CAA when considering whether to licence the launch and operation of such mission and, if so, whether such licence should be subject to certain conditions that are likely to include:

• adherence with compliance procedures imposed by the CAA to reduce the risk of collision;
• requiring an indemnity from licenced operators for claims presented to the state (which the UK Government has confirmed will be subject to the limit on liability contained in the licence issued by the CAA); and
• requiring a minimum level of third-party liability insurance cover (as a condition of the licence issued by the CAA, and which usually aligns with limit on liability referred in relation to the indemnification of the UK Government referred to above).

These risks can however be addressed or mitigated via technical means – for example, by ensuring manoeuvrability for collision avoidance purposes, trackability (both from Earth and in orbit) for the purposes of monitoring the asset and better enabling space traffic management, and propulsion technology to better enable a safe re-entry/de-orbiting of the asset returned and the resources extracted. There are also legal/commercial steps that can be taken in relation to such risks – for example, by negotiating contracts which ensure that risks are accurately scoped and allocated to the party who is best able to manage and mitigate such risks, structuring the mission to mitigate potential risks, risk pricing, and obtaining bespoke insurance products to name a few.

If these risks are not addressed or mitigated, and these risks occur, the operator may become ultimately liable for resulting losses (up to the cap stated in its licence provided by the CAA). For a high-level overview of previous article for an overview of potential liabilities resulting from space activities and the consultation that the UK Space Agency is carrying out in relation to orbital liability, insurance, charging, and sustainability at the following link: UK Space Agency undertakes consultation on orbital liabilities, insurance, charging and sustainability.

Environmental risk

Any actual or perceived environmental disruption or contamination of the moon or celestial bodies will also give rise to potential risks of dispute. Article IX of the OST, for example, speaks of the avoidance of “harmful contamination”, and Article 7.1 of the Moon Agreement requires that parties take measures “to prevent disruption of the existing balance of’ the environment of the moon or celestial bodies, “whether by introducing adverse changes in that environment, by its harmful contamination through introduction of extra-environmental matter, or otherwise”. The extent and size of the mission will, of course, affect the likelihood of this risk coming to fruition, and the extent of the potential exposure (particularly, taking into account, that larger missions are likely to need to rely on nuclear reactors for power).

Interference risk

Given the freedom of use ensured by Article I of the OST and prohibition of appropriation stipulated by Article II of the OST, there is a risk that the unilateral acts of operators may interfere with the rights of another operator, and could lead to dispute risks in the event that an operator becomes aggrieved or suffers loss as a result of such interference.

SPACE-BASED SOLAR POWER (SBSP): A NEW DAWN IN RENEWABLE ENERGY

SBSP v. Space Mining

Unlike the extractive nature of space mining, space-based solar power (SBSP) represents a different use of natural resources in space. Solar energy is considered a global common (much like space itself), unlimited and non-depletive. This distinction is important in the legal discourse surrounding space mining activities, as the non-extractive nature of SBSP does not result in the same questions with respect to property rights and sovereignty that are inherent in space mining.

Overview of SBSP

SBSP is technology being developed, which collects solar energy in space and transmits it to Earth. This method overcomes the limitations of terrestrial solar power by avoiding atmospheric absorption and reflection, and it can generate power continuously without the interruptions caused by night or changing weather conditions. SBSP involves large solar arrays in space that convert sunlight to energy, which is then wirelessly beamed to Earth as microwaves or laser energy and received by ground stations known as rectennas that convert it to electricity for use in the power grid.

There are various proposed methods for deploying SBSP systems, including assembling large satellites in orbit from components sent from Earth, or even manufacturing these components in space. SBSP could offer the potential for a continuous and vast supply of clean energy.

Several countries, including the United Kingdom, Japan, the United States, and members of the EU, are actively researching and pursuing SBSP, recognising its potential to aid in the transition to clean and secure energy sources. The European Space Agency, for example, has highlighted the uninterrupted and intense solar energy available in space and the potential to beam this energy to wherever it is needed on Earth or even to other planets, supporting further space exploration and settlement.

Potential legal risks and liabilities resulting from SBSP missions

There are inherent risks relating to SBSP missions given that the infrastructure required is likely to require launches of several assets into orbit (which may include assets to enable the manufacture of further assets in orbit) and assembly of such assets in orbit. This is particularly challenging in an increasingly congested orbit and gives rise to increased risk of collisions with debris and active satellites in orbit. These risks are likely to be equally pertinent at the end-of-life of the mission when the assets may need to be de-assembled and de-orbited, or the infrastructure moved into a “graveyard” orbit (depending on the licence conditions imposed by the CAA).

Infrastructure, once in-orbit and operational, will need to be regularly serviced and maintained during the life of the mission, which is likely to require that satellites (referred to as cyclers) are launched and required to interface with the infrastructure and carry out servicing/maintenance activities in orbit. In traversing active orbits, there is greater potential for collisions or damage to the infrastructure or other assets in orbit, which may give rise to potential orbital liabilities.

As with space mining missions, the above inherent risks will impact on the risk profile of the mission, which will be considered by the CAA when considering whether to licence the launch and operation of such mission and, if so, whether such licence should be subject to certain conditions. As with space mining missions, such conditions are likely to include:

• adherence with compliance procedures imposed by the CAA to reduce the risk of collision;
• requiring an indemnity from licenced operators for claims presented to the state (which the UK Government has confirmed will be subject to the limit on liability contained in the licence issued by the CAA); and
• requiring a minimum level of third-party liability insurance cover (as a condition of the licence issued by the CAA, and which usually aligns with limit on liability referred in relation to the indemnification of the UK Government referred to above).

These risks can however be addressed or mitigated via technical means – for example, by ensuring manoeuvrability for collision avoidance purposes, trackability (both from Earth and in orbit) for the purposes of monitoring the asset and better enabling space traffic management, and propulsion technology to better enable a safe re-entry/de-orbiting of the asset returned and the resources extracted. There are also legal/commercial steps that can be taken in relation to such risks – for example, by negotiating contracts which ensure that risks are accurately scoped and allocated to the party who is best able to manage and mitigate such risks, structuring the mission to mitigate potential risks, risk pricing, and obtaining bespoke insurance products to name a few.

As with space mining missions, if the above risks are not addressed or mitigated, and these risks occur, the operator may become ultimately liable for resulting losses (up to the cap stated in its licence provided by the CAA). For a high-level overview of previous article for an overview of potential liabilities resulting from space activities and the consultation that the UK Space Agency is carrying out in relation to orbital liability, insurance, charging, and sustainability at the following link: UK Space Agency undertakes consultation on orbital liabilities, insurance, charging and sustainability.

The interface between the infrastructure in orbit, once operational, and the ground-based infrastructure will, of course, be key to the success of such missions. It is therefore important that risks relating to the ground-based infrastructure are considered at an early stage – for example, from a legal perspective, operators should consider whether planning permissions are required, contracting for the supply and construction of the infrastructure, potential interfaces with existing infrastructure to enable onward transmission (including, for example, grid connection), and ensuring the site is viable taking into account the nature of the mission.

Conclusion

The utilisation of the abundance of resources in the cosmos is fast transitioning from speculative fiction to a tangible reality.

Technological advancements, decreasing costs, and a growing global demand in certain markets are increasing the commercial appetite for novel missions aiming to utilise natural resources in space, including space mining and resource extraction, and SBSP.

In addition to risks inherent to such missions, there are ambiguities within international space law relating to, for example, appropriation, property rights, and potential environmental harm, which could result in an increased risk of disputes arising in relation to these activities. Such risks could ultimately affect the commercial palatability of such missions given that, for example, investors and financiers may not be able to fund such missions. Whilst some jurisdictions, including the US, have sought to provide clarity in this area, the UK has not yet addressed this – although clarity may follow from the PIR.

In relation to particularly novel and innovative missions, such as space mining and SBSP, it is advisable to seek legal advice at an early stage to ensure that inherent risks and the risk of potential disputes are thoroughly understood, managed, and mitigated (to the greatest extent possible) from the outset.

Further information/resources

Space is inherently global and complex. DLA Piper has a global team of lawyers that can advise on the whole lifecycle of such projects which are strategically placed around the world to provide the necessary breadth and depth of experience – from the commercial structuring of the transaction, procurement, design and build of the assets, transport and launch of those assets, exploitation and operation of such assets in orbit, through to end-of-life/de-orbiting such assets.

Please contact Louis Head if you have any questions, or if it would be useful to discuss anything further.

This publication is intended to be a general overview and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper will accept not responsibility for any actions taken or not taken on the basis of this publication.