Mining the Moon: Untapped Resources, Untapped Law

Humans conquered the world as seafaring people, and civilizations throughout history understood that the discovery of new lands across the seas brought with it resources and power. Today, instead of looking across the seas to discover new resources, world leaders and even private companies look to the stars.

Space exploration is gaining traction with both spacefaring and non-spacefaring nations that are eager to develop off-earth resources. The natural starting point for developing space begins with our closest natural satellite: the Moon. While geological surveys have shown that the moon may contain water, helium-3, and rare earth metals, it is still largely unknown whether the moon harbors enough resources for moon mining to be an economically feasible venture. (Scott Shackelford | The Conversation), (Leonard David | Space.com). A planetary geologist says that the Moon’s valuable metals may be “essentially impossible to access.” (Paul K. Byrne | The Conversation). Even though that may be the case, nations are already interested in exploring the Moon for its resources, and an existing legal framework to govern those activities is largely absent.

The United Nation’s Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, commonly known as the Moon Agreement, adopted in 1979, was the international community’s attempt to establish a legal framework for recovering and utilizing the Moon’s resources. (UN | Moon Agreement). The Moon Agreement bans private ownership of extraterrestrial property, and the treaty language builds from the Treaty on Principles Governing the Activities of States in the Exploration Use of Outer Space, including the Moon and Other Celestial Bodies or as it is commonly known, the 1967 Outer Space Treaty (OST). (UN | Outer Space Treaty). The Moon Agreement further declares that the Moon’s natural resources shall not “become property of any State.” (UN | Moon Agreement). Although considered a commendable effort, many countries would rather agree that the Moon Agreement headed in the wrong direction. Only 18 nations have ratified the Agreement to date. Id. Unsurprisingly, spacefaring powers such as the United States, Russia, and China have neither signed nor ratified.

As the international community debates how to best move forward, President Trump’s April 2020 Executive Order announced that “the United States does not view [the moon] as a global commons.” (Trump Executive Order). Even though the United States is a champion of the scientific discovery of outer space, it endorses the “public and private recovery and use” of the Moon’s resources. Id. President Trump rejects the Moon Agreement as a reflection of “customary international law” ­– as do most other countries. Id. Instead, the President proposes the United States enter into unique bilateral and multilateral arrangements. Id.

Bilateral or multilateral arrangements can serve to dissuade sovereign nations who will be competing for lunar resources from a military arms race. (Scott Shackelford, The Conversation). Major space players are already entering into these agreements. For example, Russia and China have agreed to pursue a joint exploration of the Moon. (Mandy Mayfield, National Defense). The United States, on the other hand, has called for international cooperation with nations who wish to participate in the Artemis program via the Artemis Accords. (NASA | Artemis Accords).

The United States’ Artemis program seeks to revitalize human space exploration, and the Artemis Accords are the United States’ Principles for a Safe, Peaceful, and Prosperous Future. Id. NASA makes it clear that the United States intends to conduct resource exploration in harmony with existing customary international law, namely the OST Articles II, VI, and XI. Id. Collectively, the articles state that the Moon is not subject to national appropriation and will be used for peaceful purposes. (UN | Outer Space Treaty). The Artemis Accords build upon the existing OST framework to advance cooperative ventures to outer space. (David Fidler | Council on Foreign Relations). Even though the Trump administration rejects space resources as a global commons, NASA identifies lunar mining as critical for “sustainable space exploration.” (NASA | Artemis Accords). For this reason, some countries are bound to be disquieted by the United States’ policy, regardless if it is built upon the OST. Unsurprisingly, Russia’s space agency has analogized the accords to a form of colonialism, signaling its discomfort with the United States potential use of outer space resources. Id.

For this reason, peaceful governance of lunar activity is critical. Even if the Moon’s resources are unattainable, one lunar scientist at NASA has explained that regardless, the Moon will become a proving ground to test future technology for the space exploration of Mars and beyond. (Nadia Drake, National Geographic). To ease international tensions and possibly ensure peaceful operations of the Moon, a space law and policy scholar has drawn parallels to deep seabed mining and Antarctic exploration. (Scott Shackelford | The Conversation). For example, the United Nations’ International Seabed Authority permits sovereign and private entities to develop deep seabed resources, if they share proceeds with “landlocked developing nations.” Id. Perhaps more pertinent, Antarctica has been peacefully governed for over sixty years by a treaty that disallows “national territorial claims” along with “military and commercial activities.” Id.

Sixty years ago, President Eisenhower stated that the Antarctic Treaty of 1959 should serve as a model for outer space law. (Lyall & Larsen | Space Law: A Treatise). Some 60 years later, the Antarctic analogy is still relevant. Id. The Antarctic Treaty states that “Antarctica shall be used for peaceful purposes only.” (UN | Antarctic Treaty) Similar language can be found in both the OST and Moon Agreement, where outer space and celestial bodies shall be used “exclusively for peaceful purposes.” (UN | Outer Space Treaty), (UN | Moon Agreement). While the application of the Antarctic Treaty language is evident when compared to the United Nation’s treaties on outer space, the Antarctic analogy may be obsolete.

Notably, Antarctica has been and continues to be accessible to many nations. (NSF | US Antarctica Program). Outer space, however, has been dominated by the United States and a small handful of spacefaring powers. Where Antarctica has predominately been used for peaceful, scientific research purposes, the Moon is viewed as a harbor of natural resources. Without a proper legal framework, excavating lunar resources could mean immense wealth for the most space-savvy country.

Perhaps one way to ensure peaceful operations of lunar excavation lies within trade agreements. While the OST is still celebrated, President Trump’s Executive Order, and China and Russia’s joint exploration agreement seem to signal that countries may be looking at the Moon for gain. The next best step could be regulating the trade of lunar resources via an entity such as the World Trade Organization (WTO). The WTO is poised to regulate trade between major spacefaring and non-spacefaring countries: the United States, Russia, and China are all WTO members, along with more than “three-quarters of WTO members [who] are developing or least-developed economies.” (WTO | In Brief).

Applying lessons from the past or borrowing policy from established areas of law to avoid ambiguities in space policy may be the best bet for the future. Sadly, governing space “has failed to keep pace” with technological developments, as nations ready themselves for continued space exploration. (Scott Shackelford, American Business Law Journal). This failure has led to some agreements that are loosely followed and to major space players carving out their own ideas of international space policy. As the world contemplates how to best establish a legal framework for moon mining and beyond, it may be prudent to revisit existing space policy, so that both spacefaring and non-spacefaring nations can access off-earth resources.