A gold rush in space: Is it legal for companies to buy and sell the Moon’s resources?

The new golden age of space travel includes a multimillion-dollar business: the exploitation of celestial resources. A 2018 study — cited by the European Space Agency (ESA) in the ESA Space Resources Strategy document — predicts that between $73 and $170 billion in revenue could be generated annually from this activity until 2045. Meanwhile, the water from the lunar poles — along with several minerals that are found there — will be essential for the construction of permanent bases.

Future technology could open up a new Silk Road, with the trade of treasures such as helium-3 (the key component of nuclear fusion). The United States, on the one hand — and Russia and China, on the other — are leading the race to get at these lunar resources. They’re moving so fast that international regulations cannot keep up. Experts warn that, without order, the galaxy could quickly become the Wild West.

The first legal question about the use of these resources is whether states or private companies can take possession of them. The international treaties in force — which were approved during the Cold War — prohibit the national appropriation of outer space, the Moon, or other celestial bodies. Víctor Barrio — a senior associate at the law firm Hogan Lovells — explains that, according to the 1967 Outer Space Treaty (the basic international framework), “they don’t belong to anyone.”

However, this doesn’t necessarily mean that the exploitation of the Moon’s natural resources is prohibited. Rafael Harillo — a lawyer specializing in space law — defines the situation as follows: “The sea belongs to everyone and the fish belongs to [the people] who catch them.”

Such a vision isn’t entirely conflict-free. Attorney Efrén Díaz — also an expert in space law — agrees that outer space is the concern of all humanity, but emphasizes that it will be necessary to see to what extent international treaties allow for the ownership of all or part of it, “because the principle of non-appropriation is still in force.”

Problems arise when the situation moves from theory to reality. Both NASA and China plan to build permanent homes on the Moon that will require water, minerals (such as regolith, for construction purposes), as well as energy sources, such as helium-3. To protect asteroid mining, the best-positioned countries have begun attempts to legalize it unilaterally. The United States broke the ice in 2015, with the approval of the so-called Asteroids Act, which allows its nationals to obtain licenses to trade these resources. A couple of years later, in 2017, Luxembourg also protected these activities by law. Subsequently, other countries — such as the United Arab Emirates, Japan and Spain — have joined this push.

Bilateral agreements

More than 30 of America’s international partners have already signed on to the Artemis Accords, which were drafted by NASA and the U.S. Department of State. They have done so to be able to participate in the next missions to the Moon. This multilateral agreement is a kind of guide when it comes to space cooperation. Víctor Barrio notes that it also contemplates and justifies the extraction of resources, while not implying “intrinsically national appropriation.”

Harillo adds that this consensual regulation is “gaining more participants than the Moon Treaty of 1979.” Said agreement, explains Elisa González — president of the Spanish Association of Aeronautics and Space Law — was ratified by only about 20 countries and didn’t resolve the issue of the use of lunar resources, which were classified as the common heritage of humanity. The great space powers fled from this treaty, she notes, because it provided for the “equitable participation” of all signatories when it came to the exploitation of resources. “Is such participation fair when there is a state, organization or private entity that’s risking a lot of the capital?”

The boom of the space economy is on the horizon. There are already several pioneering companies that are betting big. Some have explored the possibility of mining asteroid resources rich in minerals, such as platinum, gold and other valuable metals. Víctor Barrio cautions that, while there is optimism that said projects will succeed, we’ll have to wait 20 years to see the result. What’s closer, he affirms, is the exploitation of the Moon: projects related to this could take off in the next decade.

A lunar economy raises many questions that, for the moment, don’t have answers. One of the most intense debates is whether and how countries with no financial stake in this business should be compensated. Víctor Barrio is in favor of creating a tax to finance technological development programs that will compensate these nations. However, Elisa González is opposed to this formula: “All of humanity has been benefiting for years from the technology developed by spatially-active states.”

While a new international standard is coming to light, space law expert Efrén Díaz underlines the importance of guaranteeing a responsible and sustainable use of the cosmos. “The [overmining] of terrestrial fossil resources can be a reference to apply in the use of space’s mineral resources.”

Space Heritage

As space exploration progresses, locations on other celestial bodies of historical and scientific interest — such as the Moon and Mars — are being discovered and reached. For instance, Tranquility Base: the site where the legendary Apollo 11 mission landed on the moon. The soil still preserves the traces of the first human footprints left by astronauts Neil Armstrong and Buzz Aldrin more than half-a-century ago, as witnessed by the Lunar Reconnaissance Orbiter in July 2009. Díaz points out that the protection of space heritage presents legal challenges about how to preserve and safeguard these sites and objects, “so that human activities don’t irreversibly damage them.”

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