Toward the Commercialization of Lunar Mining: Legal and Ethical Dilemmas

On September 10, 2020, the former National Aeronautics and Space Administration (“NASA”) Administrator Jim Bridenstine tweeted that NASA is “buying lunar soil from a commercial provider! It’s time to establish the regulatory certainty to extract and trade space resources.” (Bridenstine, Twitter). This announcement over a social media platform solidifies how the United States, a major spacefaring nation, has interpreted international law to favor the commercialization of lunar mining while acknowledging that there is still uncertainty surrounding how the industry will be governed, raising legal and ethical dilemmas.

Excavating and exploiting lunar resources gives rise to questions of which international laws apply, and whether or not existing space law establishes a defined legal regime for commercial companies to operate. Space competent countries, like the U.S., understand the scientific and economic benefits of hiring private companies to mine the moon, but developing countries are worried they will be excluded from a space-based economy. (Lyall & Larsen, Space Law: A Treatise). The notion of first-come, first-serve is unappealing to countries lacking the infrastructure to keep up with the rapid advancements in space technology by a few centralized powers. The danger of a widening inequality gap between developed and developing continues will only continue to grow if unregulated space mining becomes possible. Id.

Regardless of an inequality gap, the U.S. insists that the Treaty on Principles Governing the Activities of States in the Exploration Use of Outer Space, including the Moon and Other Celestial Bodies, or the Outer Space Treaty (OST), the seminal document establishing space law, allows for the exploitation of lunar resources and has already granted a government contract to major commercial companies to establish a permanent lunar presence by 2024. (Artemis Accords, NASA), (NASA Selects Blue Origins, Dynetics, SpaceX, NASA). For a permanent lunar base to be successful, future Moon inhabitants would need to extract and utilize lunar resources. (ISRU Overview, NASA) The legal quandary facing spacefaring nations is whether or not the OST permits these activities and whether or not states will be violative of international law by pursuing them. To avoid this dilemma and to operate within the bounds of the OST, countries like the U.S. have turned toward hiring private companies to commercialize space.

The OST, or Principles Treaty, entered into force in 1967 and is akin to a constitutional document in outer space law. (U.N., OST). As of 2019, 109 nation-states have ratified the OST, including the major space powers: the U.S., Russia, and China. (IISL Standing Committee Annual Report, IISL). Although the OST has not specifically addressed the commercialization of lunar mining, the sheer volume of signatories has helped secure certain articles of the treaty as customary international law, binding both commercial actors and sovereign nations, regardless of whether a country is a party to the treaty. (Lyall & Larsen, Space Law: A Treatise). As a result, the text is foundational to every aspect of space law, including the commercialization of lunar mining and the excavation of lunar resources.

For a company to have a viable lunar mining operation, private enterprises would need to have exclusive rights to mined resources while not claiming sovereignty over the moon because exclusive rights to resources provide the necessary security and assurance in a private company’s investment; similarly, those same exclusive rights raise concerns of sovereignty prohibited by the OST. (See Tennen, Towards a New Regime for Exploitation of Outer Space Mineral Resources). As a result, there has been much debate as to whether the OST permits privatized lunar mining claims (Space Resource Mining, IISL). The treaty itself is not specific to particular industries and did not anticipate all modern technological advances at the time of its formation. Therefore, it is inchoate in terms of resource extraction.

Further, the OST expressly prohibits the national appropriation of celestial bodies. (Lyall & Larsen, Space Law: A Treatise). Extracting resources is not prohibited by the treaty per se but asserting property rights over resources that are still in place would be a violation of the treaty. (Kazemi & Golroo, Legal Challenges in Front of Private Sectors on Exploration of Space Resources and off-Earth Mining). On the other hand, if commercial entities assert property rights, those commercial actors must still be continuously supervised by the state that is liable for their activities, per OST Art. VI. (See U.N., OST). This begs the question, does continuous supervision equate to sovereignty and perhaps even national appropriation? This loophole-like language, prohibiting national appropriation of resources in place, means that the OST is not definitive on the permissibility of commercially mining and extracting lunar resources, which is why the U.S. seeks to interpret the OST in such a way that allows private companies to safely operate on the moon.

For example, signed into law in 2015, the Commercial Space Launch Competitiveness Act ("the Act") allows "commercial exploitation for and commercial recovery of space resources." (Commercial Space Launch Competitiveness Act, 51 U.S.C. § 50302). Title IV of the Act authorizes commercial lunar mining activities and specifically states that the U.S., according to international obligations, does not assert sovereignty or exclusive rights over the Moon. Id. Consistent with international law, the U.S. does not itself claim territory, but interprets the OST to mean that commercial companies can “possess, own, transport, use and sell the …  space resource obtained in accordance with applicable law.” Id. Additionally, Bridenstine’s announcement to mine the moon further establishes America’s domestic policy stance that privatizing the mining of space resources is permissible per the OST. A space policy advisor for The Planetary Society, Casey Dreier, announced via Twitter that “private companies can collect and sell celestial materials” in the U.S. (Dreier, Twitter). However, this is only the United States’ interpretation of international law and does not resolve the legal issue of the OST’s unclear language.

When a major spacefaring country eventually attempts to establish a lunar mining colony, there needs to be an international political discussion about whether the OST allows for this resource development in space and also whether it would be ethical to allow a small contingent of countries to benefit from space mining. It is prudent to contemplate how less technologically advanced countries could benefit from lunar resources – or whether they should have the right to benefit at all. Two schools of thought accompany this ethical dilemma: the common heritage of mankind and the common benefit principles. (Lyall & Larsen, Space Law: A Treatise). Common heritage, the main principle of the Moon Agreement, which has been largely rejected by the international community, purports the entitlement of space for everyone, a shared wealth idea. Id. On the other hand, the common benefit stands for the first-come, first-serve status quo and that everyone indirectly benefits when humankind innovates – even if it is only the select few major spacefaring states and their respective private entities that do so. See id.

As major spacefaring countries like the United States continue to carve out their national space laws with national interests in mind, it appears that the common benefit principle is taking a stronghold in outer space law and leaving little room for the common heritage principle. Perhaps the clearest way forward to accommodate both spacefaring and non-spacefaring countries would be to grant less space-capable countries observation rights to lunar mining activities, as opposed to a shared distribution of lunar resources. Observation is articulated in OST Art. X:

To promote international co-operation in the exploration and use of outer space, including the moon and other celestial bodies, in conformity with the purposes of this Treaty, the States Parties to the Treaty shall consider on a basis of equality any requests by other States Parties to the Treaty to be afforded an opportunity to observe the flight of space objects launched by those States. The nature of such an opportunity for observation and the conditions under which it could be afforded shall be determined by agreement between the States concerned.

Promoting international cooperation is a main tenant of the OST and Art. X promotes compromise between spacefaring and non-spacefaring powers. The article simultaneously allows state parties to the treaty, including less space-capable countries, to request to observe certain space activities while allowing the launching state to determine observation rights by agreement. This article captures the spirit of shared knowledge that continues to move humankind forward. By transposing this framework to lunar mining via bilateral and multilateral agreements, like the Artemis Accords, maybe the most inclusive way for interested countries to both contribute to and benefit from the future of lunar mining.