The Case for Space Solar Power

By John C. Mankins

Book review by Adam Manning

Space Solar Power (SSP) has always seemed a tantalisingly attractive concept; harnessing some of the enormous and endless power of the Sun that comes our way and putting it to work here at home.  The basic structure consists of large solar power stations in space that receive energy directly from the sun’s rays. This energy is then converted into a form that can be transmitted through the Earth’s atmosphere to receiving stations on the ground and then distributed for use across the power grid.  If implemented, SSP could have enormous implications for energy use, for technology and for our geo-political relationships that are driven by the powerful influence of our petroleum based economy.

The Case for Space Solar Power is a timely update on SSP with a detailed review of its origin and development, a new proposal for possible implementation and a look at its overall feasibility.  The author had a long career with NASA, including ten years as the manager of its Advanced Concept Studies, and is recognised as a leading figure in SSP.

John C. Mankins

In the 1970s SSP became linked closely with large scale plans for space settlement put forward by Dr Gerard O’Neill and one of the themes of this book is that this wasn't, in retrospect, helpful to the development of SSP research.  The initial conceptions of SSP were very large scale projects, with references to stations, usually positioned in geostationary orbit, several miles in diameter and involving hundreds of launches to establish the necessary hardware in space.

When plans of this scale were produced in the late 1970s, their enormity made them an immediate target for rejection and even ridicule.  In his book, Mankins puts this forward as one of the reasons why SSP has never been taken as seriously as it should be, despite its obvious logical attractiveness. This history of almost scorn has perhaps held back research on the technical issues that need examining if a practical project is to be implemented.

The Case for Space Solar Power puts forward a detailed account of a new proposal for SSP – the SPS – ALPHA.  A beautiful design, it takes older suggestions and updates them for the 21st century. Using a high degree of modularity and the latest in robotics, it is still a very large scale project but the use of modern engineering techniques reduces the eye watering costs of earlier proposals.  It is the discussion of the costs involved that takes us to the heart of the SSP issue.  It is widely accepted that SSP does not involve any major technological breakthroughs in the same way that fusion power does.  Yet the argument has always centred on whether, given the enormous costs of the full implementing SSP, would it be worth it.  Would the huge expenditure involved ever be paid for by the sale of the energy SSP would produce?

Mankins admirably takes into account not just the SSP system itself but also analyses the costs of the huge number of launches that such a system would require. Launch capacity is an important issue for SSP and The Case for Space Solar Power considers future reusable launch vehicles and the role they would play in transferring the SPS – ALPHA system to GEO.

I’m not going to reveal the author’s overall conclusions – please read the book for that! The book reinforced my view that more basic research into wireless power transmission needs to be carried out as this will help make the answers to these issues clearer and The Case for Space Solar Power does provide details of recent studies on this, especially those carried out in Japan.

In the original plans from the 1970s, SSP and the huge space habitats proposed by Dr O’Neill formed an almost parasitical relationship with each other – the one justifying the existence of the other.  The more modern view set out in The Case for Space Solar Power suggests this is no longer valid and SSP can be independent of any large scale space settlement, although it is likely that a much more substantial orbital infrastructure will have to arise as a result of the construction of a project the size of SPS - ALPHA.  If proponents of O’Neillian scale space habitats are justifying them with the benefits of SSP, Mankins’ book does not provide a clear foundation for that justification. Nevertheless, Mankins’ vision is of a much greater extension of human activity into space, with SSP playing an important role.

A particularly useful element of the book is a consideration of how SSP might fit with other means of energy production, especially fitting with renewable energy and the markets that might have a use for it. This more practical approach is to be welcomed after the long period of only viewing it in global energy terms.

On a more global scale though Mankins notes how SSP could play an important role in a system of energy production that seeks to mitigate global climate change. If SSP could fulfil this function, there is an urgent need to investigate it in more detail with a view to its practical implementation.

This readable and well set out book is to be greatly welcomed as an update of the concept and is highly recommended to anyone with an interest in the subject.

You can find it on Amazon (in both hardback and kindle) here: http://www.amazon.co.uk/The-Case-Space-Solar-Power/dp/099133700X/ref=tmm_hrd_title_0?ie=UTF8&qid=1447596309&sr=1-1 

Bolas Space Station - an animation

A short animation depicting a small space station in Low Earth Orbit. The station features a centrifuge, in this case a rotating arm, and on the end of each arm is a habitat module.  The arm rotates at 2.5 revolutions per minute and the artificial gravity produced by this rotation on the floor of each of the modules is around 0.35g, roughly the same as the surface gravity of Mars.

Also seen is the Epsilon reusable spaceplane, in its unmanned configuration, to resupply the station.

Reflections on Space Based Solar Power

by Adam Manning

Generating power for Earth from the enormous and constant outpouring of energy in space from the Sun has long been a dream.  Solar energy from space has been looked on longingly as a way of benignly solving our world’s ever increasing demand for power and moving civilization on from its dependence on fossil fuels.

These ideas received a great deal of attention in the 1970s with studies by Dr Gerard O’Neill and his colleagues when they set out plans for the colonisation of space.  Solar energy from space envisages satellites in Earth orbit collecting energy from the Sun using solar panels.  This energy is then converted into a different form, normally microwave transmission or laser beam, and this is transmitted directly down to a receiving station on the surface of the Earth.

Proponents of the idea point to a number of advantages compared to obtaining solar energy from conventional solar panels on the surface of Earth. The Sun’s rays are weakened as they pass through Earth’s atmosphere on their way to the surface whereas in space, there is no atmosphere and so no reduction of this sort applies. Solar energy here on Earth is subject to the vagaries of the weather as when it is cloudy the Sun’s rays provide less energy.  In space, the Sun’s energy is constant as there are no clouds.  Of course when it is night at a particular point on the Earth’s surface, there is no solar energy at all!   By contrast, if the orbit of the satellite is high enough it can receive and transmit energy derived from the Sun nearly continuously.  This avoids the need for batteries to store energy that normal solar energy entails so that a continuous supply of energy can be produced for consumers.  A typical space based solar power operation of this sort is expected to provide about the same power as an average nuclear power station.

A Space Based Solar Power Satellite demonstration experiment

Space based solar energy has been seen as a way to cost effectively solve the energy crisis of the late twentieth century and more recently as a way to provide our civilization with the huge amount of energy it will need in the future without compromising efforts to tackle global climate change.  These advantages and hopes for solar energy from space help explain why it is an idea that is revived from time to time with new studies and proposals.

Plans for Space Based Solar Power have also played another role. At the time of the original studies on space habitats in the 1970s, Dr Gerard O’Neill and his colleagues put forward plans for Space Solar Power Satellites as the main reason, at least initially, for the construction of the huge space habitats he and his colleagues proposed.  The main purpose for the construction of the Island One space habitat, with a population of 10,000 or so, was to provide living space for the large number of workers that would be needed to construct the satellites.

This was due to the breathtaking size of these solar power satellites, which would have dwarfed, for example, the International Space Station.  To ensure that the solar panels on the satellites could obtain enough energy from sunlight to provide the power needed to justify the whole operation, the satellites were expected to be at least a kilometre across and often much larger than that.  In the 1970s, there was no other way to realistically envisage an installation of this size being constructed without large numbers of workers being involved.  They would need a place to live while this was being carried out in space and so a large space habitat was required.  The initial space habitats and solar power satellites took on an almost circular logic, the one justifying the existence of the other.

It is now roughly forty years since the studies by Dr O’Neill and his colleagues and so the question arises, what has changed since? Sadly, space habitats of the size of Island One have yet to be built and there have never been any experiments concerning space based solar power for Earth in space, let alone the construction of the sizeable satellites that an operational energy scheme would necessitate. Why not?

In reviewing the history of solar power from space, one of the most striking developments has been the much wider use of solar energy on the ground accompanied by a parallel drop in its costs.  Solar energy was relatively undeveloped in the 1970s and forty years of development have made it far more widespread and mainstream.  Solar panels on the roofs of residential homes are now a familiar sight and large solar farms have been constructed to harness more of the Sun’s energy.

One of the key points made in the 1970s studies is that solar energy from space would ultimately be cheap compared to existing energy sources including the then rocketing price of oil, particularly once the enormous infrastructure to generate it was in place.  Studies of energy prices in the mid 2010s suggest that this is not the case at present.  Oil prices are not as prohibitively expensive as originally foreseen and the cost of solar energy on the ground is much lower than expected.  These points already counter an argument for solar power from space based on higher energy costs on Earth compared to solar energy from space.  If solar energy from space is not markedly cheaper, why bother?

On this point on costs efficiency it is also important to consider launch costs. The 1970s studies looked forward to launch costs reducing steadily in the future and placed reliance on the space shuttle programme (with descendant programmes developing shuttle technologies) as a major part of this progression.  Launch costs have not reduced as substantially as hoped or planned and sending equipment or personnel into space is still very expensive.  This is important as a mature space based solar power operation will require a very large number of launches to place the equipment necessary for construction in orbit.  This expenditure is exacerbated by the need to ensure the satellite is ultimately functional at geostationary orbit, some 36,000 km from Earth’s surface. 

When these huge launch costs are taken into account, solar power from space looks even less cost effective.  The point has been made that these costs could be reduced by using materials in space, such as on the Moon’s surface or from near Earth asteroids.  This suggestion may have merit but it has to be borne in mind that techniques and technologies for the utilisation of such resources have yet to be fully developed and put into practice and this in itself will be very costly. 

Construction costs might, theoretically, be cheaper now than envisaged in the 1970s due to advances in robotics.  Speculatively, it is possible to imagine that robotics can be used to quicken and cheapen construction of the space solar satellites rather than the armies of workers proposed in the original studies. As with using space resources to construct the satellites though this point has a large degree of uncertainty and developing such advanced robotic techniques will entail a great deal of costs by itself.  It also abandons one of the main justifications for the construction of the Island One space habitat.

A further point to be considered is the effectiveness of the transmission of power from a space solar power satellite to a receiving station on Earth.  These is perhaps less experimental evidence on this as might be hoped considering the four decades that have elapsed from the original studies.  The clearest guidance on this point suggests that the microwave transmission from a solar power satellite would transmit around three times as much power to its receiving station on the Earth’s surface than an equivalently sized bank of conventional photovoltaic solar panels would be able to generate, assuming they were placed on a part of the Earth’s surface that is suitable for solar energy production. 

The practical problem that proponents of space based solar power face is that it would be much cheaper, easier and quicker to build a solar power facility (or farm as they are referred to) with conventional ground based panels that was three times the size of this receiving station.  The same amount of energy would then be produced for much less cost, technical difficulty and time.  This saving on cost would allow the use of the batteries that are needed to ensure that solar energy provides a constant supply of electricity in the case of bad weather, for example.  An alternative policy might be to build three solar farms in different areas to provide the same power as the satellite for much less cost and time.

Elon Musk is a noted entrepreneur and billionaire with large businesses involved in both space development and solar energy and if anyone were to be a powerful supporter of space based solar energy, it ought to be him. Yet he has, very clearly, set out his view that space based solar energy has no useful advantage over conventional solar panels on the surface of Earth for these reasons. 

Space based solar power (SBSP) does have many supporters despite these points.  In particular, JAXA (the Japan Aerospace Exploration Agency) has carried out useful experiments on the transmission of energy using technology suitable for SBSP in which energy was transferred over a distance of 500 metres.  One result from this was showing how the energy could be accurately directed to ensure it was received effectively.

Japan has in recent years shown particular interest in SBSP in part due to the earthquake of 2011 and the Fukushima Daiichi nuclear disaster.  In moving away from nuclear power and with a country with relatively little fossil fuel resources, SBSP must appear an attractive alternative to investigate. China has shown a similar interest. With its huge population coupled with an increasing standard of living, China’s energy needs in the future will be enormous.  If SBSP could provide a way to satisfy this need without burning fossil fuels, it could be an ideal solution. 

NASA has always had supporters of the concept and from time to time various experiments in this area are proposed, including those involving the International Space Station. The Space Solar Power Exploratory Research and Technology program proposed an ambitious timetable for work in this field. 

The US Army War College has also investigated the concept. Whilst noting the attractions and possible advantages of SBSP, they noted that much of the technology required has yet to be sufficiently proven to fully understand the costs and challenges involved.  Their report accepts that whilst the main theories concerning the operation of SBSP are plausible, since its earliest days it has always seemed that around ten years of work is needed to ensure the finer practical points are established to get to a position where such a system could be constructed. 

Likening it to research into fusion, of which there seems to be rather more experimental work, the US Army War College concluded, like Elon Musk, that at present there was no reason to think it provided any great advantage over conventional ground based solar energy.  Interestingly, their report does indicate it might have some use for the military in war zones where they have substantial energy needs without being able to rely on conventional power stations, which are either not present or have been destroyed.

At present there seems to be a clear difference of opinion between proponents of the concept, who often set SBSP within a broader context of the development of space and its long term settlement, and detractors who, whilst freely admiring it and its attractions, conclude that there is no clear, practical advantage to SBSP as matters stand. 

In this context the most prudent way to proceed is with more experiments so that a clearer understanding of the practical issues involved can be acquired.  The ideal here of course would be experiments involving the transmission of power from the International Space Station to a receiving station on Earth. This body of data may support useful, alternative applications along the way. 

If as we hope space development continues to progress, including commercial activities, it maybe that the breathtaking costs involved in the SBSP infrastructure will seem less insurmountable in future than they do at present.  This might be the case if Skylon proves to be successful in reducing the costs of access to space. Ultimately SBSP may be useful in providing power to settlements on the Moon or habitats in space itself, such as the Island One, where the absorbing qualities of the atmosphere are not present.

While we have seen reasons why SBSP, despite its initial promise, has never launched off the pages of academic papers and out into orbit, there is still much to learn.  In a world seeking to divest itself of its addiction to fossil fuels, it must be right to investigate it further, despite these present difficulties, in case it may one day unlock for us the effectively endless and constant energy pouring out of the Sun.

Space Settlement film - more animation

I've been carrying out more work on my animated film about space settlement. This section includes some initial experiments on Space Based Solar Power (SBSP). There will be a narrator ultimately who will provide commentary on what you are seeing, but for now there are some shots of a reusable spaceplane followed by shots of a centrifuge at a small space station in Earth orbit. Then we are taken to a SBSP demonstration satellite in geostationary orbit, with a manned vehicle nearby. Really enjoying working on this and the next section will be building up to the initial Island Zero space station.

Message to Sir Richard Branson about building a Virgin Moon Base

Dear Sir Richard,

One of my colleagues in the British Interplanetary Society has just submitted a couple of papers to our Journal that describe a new approach to building a Moon base using solar energy and local materials by remote operation from Earth.    The technique is based on mature technology from the nuclear industry but applies it in new ways and further details are set out below.  We are sufficiently confident that we are keen to do some experimental work to prove the various ideas, culminating in constructing a prototype base here on Earth.  A desert area would be best and we thought a suitable site might be on your space port in Arizona.  You are well know for your interest in space technology so, if you would like to hear more, please let me know!

Regards,

Adam Manning
Email: ionapollo@gmail.com



The most widely available lunar resources are the local regolith and power from sunlight.  New vitrification methods are proposed for making dust free chambers strong enough to support atmospheric pressure.  Cast in situ the underground structures require minimal excavation and should enable remote operation from Earth. Using this technique, there is a possibility of establishing long term bases/settlements on the Moon, Mars, Mercury.  There are two basic obstacles to such settlements: gravity and radiation, and solutions to both problems are offered utilizing subsurface structures. The structures could house large settlements of humans in comfort and safety in conditions similar to those envisioned with space based habitats.  Such settlements offer protection to their inhabitants from radiation events or asteroid strikes that could destroy an Earth-based civilization.  Power required is half that for cement production.

Voices from L5 - Space Law

Voices from L5 is a series of podcasts created by space advocate Liam Ginty in which he talks to people from all around the world and from all walks of life about what space settlement means to them and their world.

When we talk about space settlement, or when we see it being discussed, it's so very often in hard engineering terms. Liam wants to change that and open the floor to allow everyone to talk about space settlement. On his show, he has artists, philosophers, anthropologists, lawyers, social scientists and anyone else with an interesting topic and a unique look at the future of humanity.

I was delighted to be asked to take part and in our interview Liam and I discuss aspects of Space Law relating to space settlement. He is a great interviewer and I thoroughly enjoyed taking part.

To listen, please use the link below:

Asteroid Redirect Mission - an animation

This animated sequence depicts an Asteroid Redirect Mission. We first see a small space station in low Earth orbit. Then we are taken to a large asteroid, similar in size to say Eros, in deep space. An unmanned mission lands on it to obtain a boulder from the asteroid's surface. This returns to a space station in high lunar orbit, set up for processing asteroid material.

After initial processing at the lunar station, some of the samples are returned to the station in Earth orbit (which has expanded slightly in the meantime) for further experimentation.

This animation is part of work for Project SPACE, a study by the British Interplanetary Society on space settlement.

Project SPACE update at the British Interplanetary Society

Last night I was delighted to be part of an update on Project SPACE for the British Interplanetary Society.  Our study group has been working for around eighteen months so it was a good opportunity to discuss some of our findings and what we're looking into.

The group's leader, space advocate and presenter Jerry Stone, gave an introductory talk about the concept as a whole, focusing on the work of Dr Gerard O'Neill and the concept of large space habitats.

Jerry Stone describes the Island One space habitat

Jerry moved onto his detailed look at the mass of such habitats and his calculations on how much material would be needed to construct the initial habitat, known as Island One. His view was that the mass required was far in excess of that listed in the initial studies from the seventies.  He also discussed Island Zero, the initial space station design that the group has been working on.

Dr Mike Leggett then gave a presentation about lunar resources, including their composition and means of extraction.  He included within his discussion the possible obtaining of Helium 3 from lunar regolith.

Dr Mike Leggett provides details about lunar resources

I have been looking into the law of Outer Space and how it applies to space settlement and gave a presentation providing some points about this.  Looking at the rules set out in the Outer Space Treaty 1967 and the Moon Agreement 1979, I stressed that the present legal regime was not the ideal regulatory environment for private and commercial space development.

Talking about Space Law...

Here are the slides from my presentation :

It was an enjoyable evening and it was great to discuss the project with the audience afterwards.  Jerry even baked his traditional Project SPACE cake as a treat!

To learn more about Project SPACE please go here: http://www.bis-space.com/what-we-do/projects/project-space 

Legal Issues in Space Settlement

By Adam Manning LLB, LLM

A discussion of the laws of Outer Space as they apply to the utilization of the resources of space and ultimately the settlement of space.

This article is part of work carried out for Project SPACE, the British Interplanetary Society's study project on space colonization.

Introduction

As the realm of human activity has expanded out from the surface of Earth, so legal norms have been promulgated to regularize and restrict that activity.  In examining the history of the law of Outer Space we can see Earth bound precedents playing an important role. Similarly influences from the geo-political context, whether it is Cold War hostility or the rise of the developing world, are bound up in the moulding of this novel jurisprudence. 

Yet the way we think of space and its resources is not solely defined by these factors especially when we consider how the exploitation of space resources and ultimately space settlement might develop in the future.  The historical account of the development of ideas of sovereignty and property rights, or otherwise, in the law of Outer Space has been rooted in the relationships of nation states and has little to do with civilian or commercial interests and the greater use of space resources that we hope to see develop.

As the exploitation of space resources becomes of greater interest, the law of Outer Space seems out of step with these interests due in large part to its historical sources.  A study of the way the law has been created is a good illustration of the tensions between how many feel the law should be and what the law appears to be.  The following discussion critically examines the present legal principles applying to space resources and in particular does so in the context of the sort of private or even commercial enterprises that may play a role in the development of space and in time even its settlement.

The historical background

Prior to Sputnik I and the start of the Space Age in 1957, the English legal position concerning the ownership of space had been clear.  The common law set forth the proposition of cuius est solum, eius est usque ad coelum et ad infernos. This handy phrase meant that an owner of a parcel of land owned everything directly above and  below it, to the Heavens themselves or Hell below.  This doctrine clearly has its origins in a pre-scientific age when the practical exploitation of the heavens, or rather space, was of no significance.

This doctrine was most significantly established in the case of Bury v Pope from 1587 and whilst its implication is that it is of unlimited extent, in practice it was only ever applied in a much more limited sense. Most importantly it found application in cases of overhanging buildings intruding into a property owner’s land.  After the principle was set out by the noted jurist Blackstone, it became of importance in American Law as well.

Exceptions to this rule soon became apparent though, such as the Crown’s rights to certain minerals below a plot of ground. With the advent of air travel by balloon the absurdities that might arise from applying the principle became evident.  A case of a balloonist crossing someone’s land was referred to as being one of such negligible damage that the law would not provide a claimant with a remedy.  The law was therefore seen as being out of step with people’s expectations and it does not appear that any Court proceedings for trespass were ever based on a flight by a balloon.

When powered aircraft took to the skies the cuius est solum principle did not prevent aircraft crossing property owner’s land or for providing redress if they did.  The Court’s decisions took the view that no one expected such a principle to be applied so as to prevent air travel over land.  As the doctrine was originally precedent based, these cases could easily be distinguished from cases such as Bury v Pope.  Accordingly the cuius est solum doctrine was found to have no application to air travel and, by extension, could have no role in Space Law.

A small space station in lunar orbit

The Outer Space Treaty

With the start of the Space Age, the seeming legal void concerning operations in outer space and the need for a legal regime to manage and regulate this new arena of human endeavour became apparent.  The United Nations was the natural focus of efforts to consider these issues at an international level and following work in the early sixties, the Outer Space Treaty was drawn up in 1967.  More fully known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, this was and continues to be the major legislative enactment concerning the exploration and exploitation of space and the celestial bodies contained within it (with the exception of course of the Earth). 

One of the major influences on it was the legislation drawn up concerning the use of Antarctica and we can see this in the general conception of space in the Treaty as being an area under international control to be used for peaceful, scientific purposes. The treaty was drawn up in the expectation that soon humans would be exploring the Moon following President Kennedy’s challenge to the United States to achieve this by the end of the sixties.

The Outer Space Treaty is of major importance, not least because it has been ratified by all the space faring nations.  Drawn up during one of the most dangerous phases of the Cold War, one of its major preoccupations is unsurprisingly the peaceful use of space.  States are prohibited from installing nuclear weapons or other weapons of mass destruction in orbit or on the Moon or other celestial bodies.  We have to be grateful that the Treaty has been successful in this aim to date.

The Treaty’s efficacy is, it is suggested, bolstered by the view that its principles are now so well established that they form a substantial part of the customary law of Space.  The principles set out in the Treaty reflect in many respects the general consensus that had been reached by that point as reflected in its preamble.  The importance of the Outer Space Treaty due to its widespread ratification and acceptance into customary law suggests that any further development of the exploitation of space resources and the settlement of space will be greatly influenced by its terms.

Of more direct relevance to those interested in the settlement of space than clauses concerning nuclear weapons are those that consider issues of sovereignty and proprietorship.  The preamble sets the tone for the substantive clauses by noting the common interest of all humanity in the progress of the exploration and use of outer space.  This idea of the common interest, or heritage, is a significant theme throughout the legislative law of Outer Space, reaching back as it does to both the law of the sea and the laws enacted concerning Antarctica.  This principle is usually referred to by the formulation of the common heritage of mankind.

The preamble goes on to say that the exploration and use of outer space should be carried on for the benefit of all peoples regardless of economic and scientific development.  It is important to note these two statements are not, so far, mandatory legal requirements but instead describe a context in which all that follows has to be placed.  Like much of the rest of the Treaty, the preamble is drawn from the wording of an earlier UN resolution enacted in 1963 and so the setting out of this context is suggestive of the historical tradition the Outer Space Treaty is based on.  Nothing is said about private ownership or commercial interests or development of outer space.

Whilst the Treaty seems to be afflicted by what we might call "planetary chauvinism" in that it appears aimed at activities on the surface of the Moon or other celestial bodies, it also includes activities in outer space itself; that is space above the surface of any celestial body.  The Outer Space Treaty refers to outer space is to "outer space, including the moon and other celestial bodies" and so its terms include activities such as the building of space stations or even space colonies or habitats in orbit around the Earth, the Moon or anywhere else in space.

It is worth setting out some of the relevant Articles of the Treaty verbatim for consideration.

Article 1

    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.

    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.

Whilst Article 1 does not directly restrict or limit exploitation by private concerns it has to be noted that according to the Treaty any activities by such concerns in outer space shall be carried out for the benefit of all countries and shall be the province of all mankind. It is not unreasonable to conclude that a company set up to mine asteroids so that the minerals can be sold on Earth for profit for the company’s owners does not easily or demonstrably fit within that description.  This is not to say that any such company would immediately render its operations unlawful but a theme is developing, as we saw with the preamble, that the wording of the Treaty is not very helpful to those intent on the commercial exploitation of space resources.

The requirement of free access to all areas of celestial bodies is also noteworthy and will be developed more robustly in Article 2.  Suffice to say, a privately owned base on a Moon could find itself being intruded upon by others relying on this point.

That the exploration and use of outer space has to be done without any discrimination on the basis of equality also puts a gloss on the otherwise unfettered freedom to explore and exploit.  There is no regime in place to enforce this obligation and it is difficult to see how it could be made effective yet this stipulation, like the others, is not strongly supportive to those who seek the purely commercial exploitation of space resources.

Article 2

    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.

This very important Article makes it clear that no nation state can claim ownership of any part of a celestial body.  A de jure claim for ownership is as invalid as a de facto one based on occupation, possession, use or exploitation.  Nation states cannot, as it is commonly believed they did in earlier ages, stake claims to areas of the Moon or to asteroids by going there and planting a flag.  During the Apollo programme, the United States was sufficiently concerned about this point that a statute was passed to make it clear that the act of planting flags on the Moon was not in anyway a territorial claim to the Moon or part of it.

This is a very far-reaching principle and directly affects private space interests who seek to exploit resources on the Moon or asteroids.  Private legal ownership of land devolves from a nation state’s legal status as sovereign.  For an individual or company owning land within that nation state, they can rely on the state’s laws and Courts to recognize their ownership of that interest if someone seeks to interfere with it.  In the absence of any power for a nation state to give recognition to private legal interests, there is no ability for private interests to legally enforce them.

Article 4 of the Outer Space Treaty prohibits the installation of weapons of mass destruction on celestial bodies.  Proponents of the settlement of space sometimes include the construction and use of a mass driver on the Moon in their plans and one question that might be asked is whether such a device could be prohibited under an interpretation of this Article.  A mass driver in this scenario is a large installation that uses a long rail of electromagnets to accelerate a payload, typically an amount of lunar regolith, to extremely high speeds so it can be delivered somewhere else for use. For example, a payload of lunar regolith could be flung from the Moon’s surface to a point in space where a space habitat was being built.  The lunar regolith in this example would then serve as building material for the construction of the habitat.

It is possible that such a device could also be used destructively.  Effectively boulders on the Moon could be catapulted from the lunar surface at Earth and once in the Earth’s gravity well would unerringly hit the surface with tremendous force.  As a consequence, it is arguable that the construction of a mass driver on the lunar surface breaches this Article.

Article 6 of the Outer Space Treaty states that nation states bear international responsibility for activities carried out in space by both governmental or non-governmental organizations.  Activities by non-governmental entities must have authorization from nation states followed by ongoing supervision.  To continue our example of a mass driver on the Moon, let us imagine a Canadian company constructing and installing one on the lunar surface and that due to negligent operation the payload from the mass driver strikes and damages another country’s space craft. 

According to Article 6, in this example the Canadian government would be liable for the damage so caused. It is likely that the Canadian government would have previously licensed the mass driver’s operation under Article 6 and part of this license could entitle the Canadian government to in turn pursue the company for any damages the government had been required to pay.  It maybe, for example, that this authorization would require the company to obtain insurance for such a possibility. This potential liability on a government for the actions of a non-governmental agency is somewhat unusual in international law. 

The obligation this responsibility puts on national governments is often dealt with by a system of licensing. The UK’s licensing obligations are dealt with by the Outer Space Act 1986, which requires that any space activities launched from the UK require a license from the government.

Article 8 of the Treaty makes it clear that simply because an object is launched into space, ownership of that object is not affected.  So, no legal vacuum occurs simply because an object happens to be in the vacuum of space. Interestingly, Article 8 extends this principle to include not only objects that land on celestial bodies such as the Moon but also objects that are constructed on the surface of a celestial body.  No inkling is given of how this interacts with the prohibition on claims of sovereignty set out in Article 2 but the inference here is that this concerns items of personal property rather than claims for land.

For example, let us imagine a base on Mars populated by settlers.  At some point, one of the settlers uses Martian soil in the construction of a building. The Outer Space Treaty does not prohibit the ownership of the building’s materials as such although Article 2 would prevent claims to ownership of the land on which the building stands.

Article 9 of the Treaty is worth setting out in full.

Article 9

    In the exploration and use of outer space, including the moon and other celestial bodies, 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. 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. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

This important provision says a lot about the underlying forces at work in the creation of the Treaty and points the way to later enactments.  If we are concerned about the utilization of the resources found in space particularly by private companies then this provision militates against those concerns. 

A requirement of consideration for other nation states is set out. It has to be remembered that all space activities are, under the Treaty, supervised by the signatory states and so there is the possibility that these somewhat nebulous sounding requirements will influence and shape a state’s supervision of private space activities. Adverse environmental contamination of Earth by the introduction of extraterrestrial matter has to be avoided. In the UK, for example, it is possible to imagine that lunar regolith could be regarded as a hazardous substance due to its very fine nature and would therefore be controlled through the applicable statutory regime. 

It is the second half of this Article that is most worrying for private space companies seeking to utilize the resources on the Moon or asteroids in working towards the settlement of space.  Let us return to the imaginary mass driver being installed on the Moon.  It does not seem difficult to imagine other countries being interested in such activity. This could then lead onto consultation concerning the work being undertaken.

Article 11

    In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively.

Whilst the obligation to fulfill this requirement is on the signatory country, this could in theory require a private company to reveal any potentially commercial sensitive information.  For example, the company constructing the mass driver on the Moon would have to reveal the results of their work thus enabling others to utilize this information.  It is possible that intellectual property rights ought to be safeguarded, but this is yet another clause that does nothing to help the private utilization of space resources.

Article 12 takes this point even further.

Article 12

    All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may betaken to assure safety and to avoid interference with normal operations in the facility to be visited.

As before, private companies in space are supervised by their country of origin and so this requirement means that they would have to allow such visits (subject to reasonable notice) just as government installations on the Moon or Mars and so forth would have to.  Again, this is not greatly helpful to a private company seeking to progress the utilization of space resources.

In conclusion, the Outer Space Treaty was not drawn up with the private utilization of space resources in mind. In large part, it reflects the tensions between the space powers of the United States and the Soviet Union, particularly with its thankfully successful prohibition on nuclear weapons in orbit.  The extension of the principle of the common heritage of mankind from the ocean bed and Antarctica to the reaches of outer space suggests a view of space as a wilderness, a realm beyond private or commercial exploitation. 

The legal enforceability of the Outer Space Treaty is not doubted. It has long been ratified by all the main space going powers. As of May 2013, 102 countries are party to it whilst a further 27 have signed it but have yet to ratify it. 

The Moon Treaty

Part of the rationale for the principle of the common heritage of mankind as applied to space was ensuring that the space faring nations, which tended to be the developed economies, did not appropriate space resources at the expense of the developing world.  In the Outer Space Treaty we can see the working through of this principle in such requirements as to observe a principle of co-operation and to act with due regard to the interests of all other state parties to the Treaty as well  as the effectively explicit reference to it in Article 1.

The common heritage principle is an attempt to avoid the worst excesses of the imperial and colonial history of the world’s leading economies.  For example, jurists had in earlier times sought to justify the colonization of America by the English, calling upon principles of Roman law amongst others. In dubiously setting out a supposed legality for the actions of the first settlers in appropriating land, these efforts in retrospect only seem to make the real nature of these events more apparent.  The common heritage principle sets out an entirely new legal environment and its proponents have acclaimed it as the most important legal principle for thousands of years.  An area set aside as part of the common heritage is simply not amenable to private or corporate exploitation.  The general philosophy is that any such areas will be the subject of international consultation before development commences. 

The Outer Space Treaty came into existence shortly before the Apollo lunar missions. In the years following Apollo, the United Nations began work on a new treaty to supplement it and this became known as the Moon Agreement. It’s full name is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies and it was adopted by the United Nations in 1979.  Although it is known as the Moon Agreement it refers to not only the Moon but also any celestial bodies with the exception of the Earth, the orbits around any celestial body other than Earth and any trajectory to and from any celestial body other than Earth. Throughout the Moon Agreement, a reference to the Moon implies all of this and so "the moon" means all of outer space.

Like the Outer Space Treaty, important provisions prohibit the installation of weapons of mass destruction, with direct reference to nuclear weapons, in orbit, on the Moon or any other celestial body.  The Moon can only be used for peaceful purposes and there is a total prohibition on the setting up of military bases on celestial bodies as well. 

Article 4 is of immediate concern to those interested in the utilization of space resources.

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.
2. States Parties shall be guided by the principle of co-operation and mutual assistance in all their activities concerning the exploration and use of the moon. International co-operation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations.

The first part is a restatement of the common heritage principle, here in very clear and uncompromising language.  Any development of space resources has to be for the benefit of everyone and not just those carrying out the development.  Generational equity also has to be considered, that is ensuring future generations have some access to resources.  Space activities are expected to take place in a context of international co-operation through, presumably, some form of consultation.

We again come into contact with the tension between the common heritage principle and the needs of a commercial or corporate interest in utilizing space resources.  It might be possible to suggest that commercial development of the Moon does benefit everyone as any form of economic activity has the possibility of creating jobs, income and capital but this rather tenuous theory cannot be what the framers of the Moon Agreement had in mind.

In keeping with the Outer Space Treaty, anyone carrying out space activities is expected to freely transmit any information about their activities including any discoveries made.  Article 7 requires that measures be taken to avoid contaminating Earth with hazardous extraterrestrial material but goes further and enjoins those exploring outer space to take measures to avoid adverse changes to the environment of the Moon or other celestial bodies.  The large scale use of lunar or asteroid materials in the construction of a space habitat, for example, could potentially breach this Article.  Also Article 7 envisages the possibility of areas of scientific interest on celestial bodies as potentially being protected by international preserves to be organized through further consultation.

Article 11 of the Moon Agreement includes the words, “The moon and its natural resources are the common heritage of mankind” and goes onto reinforce the prohibition on claims of sovereignty over the Moon or celestial bodies.  Space explorers are accorded full freedom to explore under the treaty but there is a total barrier to any claim of ownership to land.  Buildings and bases can be built but the owners of the bases cannot thereby claim the land on which the base is stood (or inside in the context of an underground base).

The Moon Agreement goes onto say that as exploitation of the Moon and other space resources becomes possible, the signatories are expected to consult on and create an international regime to govern the exploitation of those resources.  This is the Moon Agreement’s way to resolve the conflict between the common heritage principle and the utilization and exploitation of space resources.

A general outline is provided for this regime.  Management of space resources has to be rational, carried out in a safe and orderly fashion and with a view to an expansion of the opportunities for utilization.  The final point states that the regime has to ensure “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.” 

The regime has to, somehow, ensure that any exploitation of space resources allows for this sharing across all countries.  It is not easy to see how this can be reconciled with utilization for commercial or private purposes.  A case could be made that, for example, the construction of a space habitat or the use of lunar or asteroid materials in constructing a constellation of space solar power satellites was for the benefit of all states.  Yet this indirect approximation of the principle is clearly not what the developing countries had in mind when this obligation was drawn up. 

Article 7 of the Moon Agreement has a requirement that is similar to Article 12 of the Outer Space Treaty by requiring anyone with a base or building on the Moon or other celestial bodies to allow anyone else, upon giving reasonable notice, to enter their premises.  This strengthens the prohibition on claims to sovereignty and makes it far more difficult to suggest any part of an extraterrestrial base is entirely inaccessible to anyone else.

As is well known, the Moon Agreement is of dubious enforceability.  As of 2014 it has only been ratified by sixteen states.  Set against the substantive recognition given to the Outer Space Treaty, the Moon Agreement has failed to attract widespread support.

An Asteroid Redirect mission approaches the lunar station

Conclusions

The Moon Agreement looks ahead to a future of more wide spread access and utilization of space.  It envisages bases and buildings on and under the Moon’s surface and by extension other planetary bodies within the solar system.  Its provisions are drawn up to help shape the legal environment of that future and the principle of the common heritage of mankind plays the most important role in that shaping.

A key question concerning the commercial or private exploitation of the resources in space is one of ownership. An economic entity will want to own in some way the resources it uses to ensure it can keep the rewards for its activities.  Yet the law of Outer Space at every stage prevents any claim to legal title to an extraterrestrial estate.  Private ownership of land derives from legal recognition in a state’s courts, based on a state’s condition as sovereign of the nation in which that land is situated. If a state cannot claim any form of sovereignty, that necessary first step does not occur.  As we have seen, whilst private ownership of the products of extraterrestrial materials is not directly prohibited, according to the Moon Agreement the use of resources to make such products has to be governed by an international regime.  In other words, you may own what you make but the United Nations will seek to manage the whole process. This ambiguity is not helpful to those interested in the private or even commercial utilization of space resources.

If we consider the effective power of these laws, we can be sure that the Outer Space Treaty’s provisions will be a major influence on the future development of space as long as it remains in force.  Though the Moon Agreement does not have anywhere near the same international recognition, it’s provisions still provide some of the most important rules on how the use of space resources is at least expected to take place.  The treaties will undoubtedly shape the context for future debates and negotiations for the development of space as they are the most important sources of legal norms on such activity at present. 

It is no answer to say that anyone with the power to get into space and land on the Moon, Mars or an asteroid and commence some form of mining or other exploitation will thereby by default gain ownership and can simply ignore these legal provisions.  For the foreseeable future, such an enterprise is at some point going to return to Earth and it will be Earth’s nations and their citizens, subject to the rule of law as they are, which will provide any markets for the goods and services these enterprises provide.

The terms of the Moon Agreement strongly suggest that there might be formidable opposition to commercial exploitation of space resources without the sort of equitable sharing, however achieved, that the Agreement prescribes.  The common heritage principle could easily come to the aid of those seeking to prevent or hamper private or commercial space development. Despite the widespread failure to ratify it, the Agreement is still an important source of legal norms, posited by the United Nations. 

It is disappointing in some respects that the Moon Agreement’s regime for space resources was not implemented as this would provide an indication of how the common heritage principle and private or even commercial exploitation might be reconciled, if at all.  Commercial exploitation of other areas protected by the principle of the common heritage has been controversial and it is likely that space development will be the same.  Yet we would at least have a regime in place which could, if required, be reformed to reflect new approaches to space development.  As matters stand, there is a legal void on how this should lawfully proceed.

In the absence of such a regime it is possible that any development in space will be, as it has been to date, the province of space faring nations. Any private or commercial concerns face not only the usual technical and financial difficulties but also an unsympathetic legal framework.

The greater interest in private space development has once more thrown these legal difficulties into focus, as shown by a recent attempt at introducing new national legislation in America.  The American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROID) Act sought to enjoin the US government to facilitate the commercial utilization and exploitation of asteroids.  It also sought to enact a principle that whoever obtained resources from an asteroid thereby became the owner of that property and has full rights to that property in accordance with the law.  Its most interesting provision is one that seeks to resolve any dispute between entities within US jurisdiction on the basis that whoever makes a claim first will be successful, subject to the international obligations on the government in such situations.

Nothing in the ASTEROID Act, such as it is, ostensibly breaches the Outer Space Treaty and the Act can be seen as a way of promoting the concept of obtaining resources from asteroids within the US legal system whilst giving due recognition to the provisions of the Treaty.  Its progress towards enactment was brought to an end however and in the debate it was suggested that it would be some decades before anyone could practically obtain material from an asteroid to be used industrially.

The ASTEROID Act makes the point about the need for reform of the legal principles governing space resources if private and commercial utilization is going to prosper.  Such activities will have to take place in a legal environment and at present that environment is inimical to these efforts growing and ultimately succeeding. It is submitted that these rules ought to be reformed if private efforts to further expand the reach of humanity are to be given the very best chance of achieving their dream.