Lawyer Details How Homo Sapiens Can Destroy Another Planet – Can We Mine Mars? Space Law and the Red Planet

We are in a “second” Space Age: Not only are traditional government players such as NASA, the European Space Agency and the Russians being challenged by by the Chinese and Indian space programs, but we also have at least three well-known billionaires mounting their own private space excursions.

And although, as of today, “missions to Mars”—at least, those involving humans—are still the exclusive preserve of sci-fi novels and Hollywood films, the recent advent of serious private investment in space travel (and the audacity of those behind those ventures) seems to be getting us closer to Mars. When astronauts do walk on Mars, this will rival—and perhaps exceed—the thrill of the Moon landing.

Yet it will take enormous resources to get there. And once that capital is spent— particularly if some of it is private capital—voices are bound to ask: Can we get any return on our investment? Put crudely, can Mars pay?

Can Mars Exploration Produce ROI?

The answer to the question is in three parts. The first is whether Mars has anything tangible that can be extracted for value. Some think it does. For example, there has been detected on Mars’s surface an excess of deuterium, or “heavy hydrogen,” an isotope of hydrogen that, unusually, contains a neutron.

Deuterium forms “heavy water,” a compound currently used in some nuclear power projects, and which is believed to have potential in nuclear fusion. It occurs naturally in the Earth’s water, but at much lower percentages, and takes considerable effort to extract.

Perhaps, if Martian deuterium was extracted in large enough quantities, it could be of use on Earth. Or perhaps, depending on future innovations, it could provide an independent power source for spacefarers. And of course, deuterium is only one of many possible natural resources on Mars.

The second question is whether any intangible wealth can be gained from exploring Mars. Right now, this can only be guessed at, but it is not unreasonable to suppose that new biological or chemical processes derived from, or using laboratories located on, Mars or its environs (such as its moons, Phobos and Deimos).

The third question is whether there is any legal framework to protect such discoveries. In 1967, numerous countries, including the U.S., signed the “Outer Space Treaty,” stating general principles concerning the peaceful use of space. But despite providing that the Moon, planets and other “celestial bodies” could not be the subject of “national appropriation,” the 196treaty did not address whether they could be mined.

Agreements Covering Exploitation of Space Resources

In 1979, the United Nations Office of Space Affairs sponsored an instrument known as the “Moon Agreement,” which would have created an international body to supervise and license the extraction of minerals on the Moon and all “celestial bodies”—including Mars. The 1979 agreement however, met opposition from private interests in the U.S., and failed to gain a significant number of adherents.

In the mid-2010s, there was a rash of national initiatives explicitly encouraging private exploitation of space. Among these was the U.S. “Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015″ (SPACE Act) providing that private companies mining the Moon, planets or asteroids will obtain valid title to the materials they extract.

More recently, in conjunction with its planned return to the Moon, the NASA spearheaded the “Artemis Accords,” an inter-governmental agreement signed by most space-faring nations stating “principles” for the future use of space. This contains an explicit statement that the extraction of space resources is not the same as “national appropriation” (as referenced in the 1967 Space Treaty), thus implicitly permitting space mining.

Extraterrestrial IP

This might cover the future mining of deuterium deposits on Mars. But what of future intangible property? If someone (an individual, government agency or a corporation) invents or discovers something novel on Mars, will this be protected by intellectual property laws?

Here, the answer is even less clear—our worldwide system of patent, copyright, and trademark law is surprisingly “terrestrial” in that it is the creature of national intellectual property statutes which are then amplified via international conventions.

The planners of the International Space Station found a “work-around.” By a 1988 intergovernmental agreement, the ISS is treated as having separate “elements” contributed by each participating state (e.g., the U.S. contributed a “habitation module” plus “laboratory modules”). Under Article 21 of that agreement, “for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element’s registry”.

Thus, inventions on board the ISS will be deemed to have occurred in the “territory” of the state that supplied the “element” responsible. Perhaps a similar expedient can be found for inventions on Mars, or perhaps a different plan needs to evolve.

The Future Is Sooner Than You Think

Discussing the “economics of Mars,” or associated legal issues, may seem absurdly futuristic, given that human exploration of Mars might not occur many for years. But the debate might come to a head sooner than expected.

Players—whether governmental or private—who invest in a human “mission to Mars” might insist on having a clear legal road map to enable future exploitation, before making their (massive) capital outlays. Alternatively, advances in robotic technology might enable exploitation of planetary bodies even before any “manned” mission occurs.

Either way; there may be pressure for clear “ground rules” in this field in the foreseeable future. The Red Planet awaits.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Timothy G. Nelson is a New York partner of Skadden, Arps, Slate, Meagher & Flom LLP, practicing international litigation and arbitration. He is a frequent commentator on space law. Views expressed are those of the author and not those of his firm or the firm’s clients.