In the near future, new laws and international agreements will be needed to govern the exploitation of resources on the lunar surface.
Michelle LD Hanlon, a professor of air and space law at the University of Mississippi, argues that this decade will bring a fundamental shift in the legality of off-world resource gathering.
It has been 50 years since man visited the Moon, and even robotic missions have been rare. But Earth’s only natural satellite is about to be invaded.
At least six countries and a slew of private companies have publicly announced more than 250 moon missions that will take place over the next decade. Many of these missions provide for permanent lunar bases and are driven largely by the ambition to assess and begin to utilize the Moon’s natural resources. In the short term, the resources would be used to support lunar missions, but in the long term, the Moon and its resources will be an essential gateway for missions to the larger riches of the solar system.
But these lofty ambitions come up against a looming legal question. On Earth, possession and ownership of natural resources is based on territorial sovereignty. Conversely, Article II of the Outer Space Treaty – the 60-year-old agreement that guides human activity in space – prohibits nations from claiming territory in space. This limitation includes the Moon, planets and asteroids. So how will space resources be managed?
I am a lawyer who focuses on the peaceful and sustainable use of space for the benefit of all humanity. I believe the 2020s will be recognized as the decade in which humans became a true space species that utilizes space resources to survive and thrive in space and on Earth. To support this future, the international community is working through several channels to develop a framework for managing space resources, starting with Earth’s closest neighbour, the Moon.
Lunar missions for lunar resources
The U.S.-led Artemis program is a coalition of commercial and international partners whose primary goal is to return men to the Moon by 2024. Ultimately, the goal is to establish a lunar base at long term. Russia and China have also announced their intention to establish an international lunar research station and have also requested international collaboration. Multiple private missions are also being developed by companies like iSpace, Astrobotic, and a handful of others.
These missions aim to determine what resources are actually available on the Moon, where they are and how difficult it will be to extract them. Currently, the most precious of these resources is water. Water is found mainly in the form of ice in shadowed craters in the polar regions. It is needed for drinking and growing food, but when split into hydrogen and oxygen, it can also be used as fuel to power rockets returning to Earth or traveling beyond the Moon.
Other valuable resources on the Moon include rare-earth metals like neodymium – used in magnets – and helium-3, which can be used to generate energy.
Current research suggests that there are only a few small areas of the Moon that contain both water and rare earth elements. This concentration of resources could pose a problem, as many of the planned missions will likely be heading towards prospecting the same areas of the Moon.
A dust problem
The last human on the Moon, Apollo 17 astronaut Eugene Cernan, called lunar dust “one of the most aggravating limiting facets of the lunar surface.” The Moon is covered in a layer of fine dust and small sharp rock fragments called regolith. Since there is virtually no atmosphere on the Moon, the regolith is easily blown away by the wind when spacecraft land or roll over the lunar surface.
Part of the 1969 Apollo 12 mission involved bringing pieces of Surveyor 3, an American spacecraft that landed on the Moon in 1967 to study its surface, back to Earth. The Apollo 12 lunar module touched down 535 feet from Surveyor 3, but upon inspection engineers found that particles blown by Apollo 12’s exhaust had perforated the surface of Surveyor 3, literally encrusting regolith in the hardware.
It’s not hard to imagine a lander or even a surface rover from one country passing too close to another country’s spacecraft and causing significant damage.
A need for rules
As efforts to return to the Moon began to intensify in the 2000s, NASA was so concerned about the destructive potential of lunar dust that in 2011 it issued a series of recommendations for all spatial entities. The goal was to protect Apollo and other American objects on the lunar surface that have historical and scientific value. The recommendations implement “exclusion zones,” defined by NASA as “boundary zones that visiting spacecraft should not enter. These suggestions are not binding on any entity or nation unless it contracts directly with NASA.
The very concept of these zones violates the plain meaning and intent of Article II of the Outer Space Treaty. This article states that no area of space is subject to “national appropriation” by “means of use or occupation”. Creating an exclusion zone around a landing or mining site could certainly be considered occupation.
However, the Outer Space Treaty offers a potential solution.
Article IX of the Outer Space Treaty requires that all activities in outer space be carried out “with due regard to the corresponding interests of others”. Under this philosophy, many nations are now working towards the collaborative use of space resources.
To date, 21 nations have accepted the Artemis Accords, which use the Outer Space Treaty’s consideration of the interests of others provision to support the development of ‘notification and coordination’ zones. , also called “safety zones”. If the number of 21 nations is not negligible, the agreements do not include for the moment the major space nations such as China, Russia or India.
In June 2022, the United Nations Committee on the Peaceful Uses of Outer Space formed the Working Group on Legal Aspects of Space Resource Activities. The mandate of this group is to develop and recommend principles concerning “the exploration, exploitation and use of space resources. Although the group has yet to address substantive issues, at least one non-signatory country to the Artemis Accords, Luxembourg, has already expressed interest in promoting safe zones.
This working group is an ideal way for safe zones like those described in the Artemis Accords to gain unanimous international support. For All Moonkind, a non-profit organization that I founded and which is made up of space experts and NASA veterans, has a mission to support the establishment of protective zones around the sites of historical importance in space as the first version of safe zones. Although initially driven by worsening lunar dust, safe zones could be a starting point for the development of a functional resource and territory management system in space. Such action would protect important historical sites.
Michelle LD Hanlon, Professor of Air and Space Law, University of Mississippi.