Set the Controls for the Heart of the Moon: Is Existing Law Sufficient to Enable Resource Extraction on the Moon?*

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020

Set the Controls for the Heart of the Moon: Is Existing Law Sufficient to Enable Resource Extraction on the Moon?^*

Mark J. Sundahl^** & Jeffrey A. Murphy^***

The extraction of natural resources from celestial bodies is an indispensable component of current plans to establish a permanent human presence on the Moon, Mars, and, eventually, other planets and moons in our solar system. These plans to settle the solar system begin with the international effort to construct a Lunar Gateway which is moving forward alongside NASA's Artemis program (which also involves international partners). This presence on the Moon promises to gradually expand as other space agencies, together with private industry, join the effort to create what is often referred to as a "Moon Village."¹

Why is resource extraction an inescapable future reality? The simple answer is that the alternative (i.e., bringing all resources from Earth) would be prohibitively expensive in light of the aggressive missions being planned by NASA and others. Without going into the economic details of launching mass into outer space (which are amply explained with a simple Google search), suffice it to say that delivering oxygen, water, fuel, and construction materials to the Moon from Earth would far more expensive than developing the capability to harvest such resources from the Moon—particularly if we are talking about a Moon village with a significant population.

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Once this premise is accepted, the next questions are legal/regulatory in nature. First comes the question of whether resource extraction is permissible under international law. Some have argued that Article II of the Outer Space Treaty prohibits mining operations as a logical corollary of the article's ban on the national appropriation of celestial bodies: "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."²

The purpose of this article of the Outer Space Treaty was to prevent the repetition of the Age of Discovery where European countries raced to plant their flags and claim all lands beyond the borders of Europe. Article II prohibits the United States from claiming the Moon as its fifty-first state (although the Apollo astronauts did plant flags to mark their arrival).³ However, arguments to expand the meaning of this article so that it prohibits mining have fallen flat. To drive this point home, changes to domestic law in the United States, Luxembourg, and, most recently, Japan have codified the legality of space mining—and have done so with diminishing objections from the international community.⁴

This Article argues that despite the existence of some open questions regarding fine points in the law and the unlikelihood of a new treaty regulating lunar activity, investors (of whatever type, whether public or private) should not be deterred due to any concern about the state of the law. The current regulatory process to launch a vehicle and operate a payload may be "clunky" in places, but it is not unduly burdensome. While there is plenty of debate about regulatory reform, it is a debate about how to improve the existing system—not necessarily to fix it. In other words, existing international law is already sufficient to protect the interests of investors, nations, and humankind. This Article will first look at what resources are likely to be extracted and why. We then describe the current international initiatives to forge new law regarding resource extraction in outer space. We close by making the case that

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existing law, although not ideal in every way, provides sufficient legal protections and regulatory certainty to allow both governments and industry to move forward with confidence.

To dispel a common misperception, platinum mines are not in the plans for NASA and (most) other celestial pioneers.⁵ It's true that there are virtually unlimited amounts of platinum and other valuable metals in space. However, the resource that will be most important as mankind establishes its first outposts on the Moon and Mars will be ice and other forms of water. Ice will provide water to drink, oxygen to breathe, and hydrogen as fuel. Once these needs are met, attention will turn to harvesting regolith for use as building material.

The amount of readily available ice on the Moon and Mars is limited. The south pole of the Moon holds the great majority of relatively easily accessible ice and the race to reach the south pole is already on. In 2008, India's Chan-drayaan-1 mission discovered the widespread presence of ice in the regolith of the south pole. In 2019, China's Chang'e 4 spacecraft was the first to achieve a soft landing near the south pole. It carried a rover named Yutu (or "Jade Rabbit") to explore the area near the landing site for traces of ice, among other objectives.

The fact that ice is a limited natural resource is one of the prime drivers of the need for a legal structure to ensure that a predictable legal regime is in place so that extraction can take place in an orderly, efficient, and fair manner without (military) conflict. Even more important at the moment is the need for regulatory certainty so that investors in those companies that plan to locate, retrieve, and process the ice (and then sell or itself use the ice-based products) will feel sufficiently secure to continue funding these ventures. Entrepreneurs need for assurance that they will have exclusive rights (which could be something less than property rights) over a certain surface area of a celestial body before they will expend large amounts of capital sending equipment and personnel to the area to begin mining.

There have been two noteworthy attempts at the international level to create norms to regulate the harvesting of ice and other natural resources. The 1979 Moon Agreement was drafted with the intention to provide a set of rules that would govern resource extraction.⁶ In particular, Article 11 called for the creation of an international body that would undertake the drafting of these rules. This meant that when a country ratified or acceded to the treaty, that country bound itself to obey those rules—whenever they were adopted and

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whatever their substance.⁷ This provision, among others, was immediately repugnant to the United States and the USSR. In fact, no major space actor has signed the treaty (which to date has only eighteen ratifications).⁸ It is widely considered a failed treaty. Although there is talk currently in the halls of the UN of a new push among the proponents of the Moon Treaty for its expanded ratification as resource extraction activities are becoming a near-term reality, this effort is not expected to go anywhere since the attitude of major space actors toward the treaty has not changed.

Almost forty years later, in 2016, the University of Leiden and its consortium partners launched the Hague International Space Resources Governance Working Group with the goal of creating "Building Blocks" that could, in turn, be used as a guide for creating a new set of norms (of whatever nature, including a treaty law, domestic laws, or some form of soft law, such as a set of guidelines or best practices) regarding the extraction and use of natural resources.⁹ The members of the Working Group were drawn from academia, industry, government, and NGOs who met twice a year for four years to debate the legal and policy issues that face the international community as resource extraction is commenced.

The resulting body of twenty Building Blocks recommended a registry-based system for registering so-called "priority rights." Registrants would have a priority right to work the registered mine. A resource right registration would describe the location of the activity and a description of the activity to be conducted. "Safety zones" would be established to provide a buffer zone between the registered activity and any new activities undertaken by another operator.¹⁰ How exactly these safety zones would be measured is left open by the Building Blocks due to the wide variety of activities that could be registered. The safety zone for an operation on a low-gravity celestial body using explosives would require a large buffer area. In contrast, an operation that merely scraped ice off the surface of the Moon may not need much of a safety zone at all. Other Building Blocks address diverse issues, such as the creation of a database of best practices and measures for preventing harmful impacts to the environment or the activities of other actors. The Building Blocks also

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contain provisions to protect cultural/historical sites (such as the Apollo landing sites) as well as site of particular scientific interest.

The Building Blocks have now been transmitted to the UN Committee on the Peaceful Uses of Outer Space in Vienna (COPUOS). A "general exchange of views on potential legal models for activities in exploration, exploitation and utilization...