Earlier this month, the Federal Aviation Authority announced that Moon Express, a space exploration business owned by private U.S. citizens, had been approved to launch an unmanned spacecraft to the moon in 2017.
Moon Express reportedly aims to land a robotic vehicle (an MX-1 lander) on the moon to maneuver it about the lunar surface and to beam images and data back to Earth. The mission is apparently a first step toward the venture's overall goal of developing and mining mineral resources of the moon.
Many will draw inspiration from this mission and the entrepreneurship and skill involved in devising it. Some also will be heartened by the fact that the U.S. government has adopted policies to facilitate the private exploration of space. From a legal point of view, though, this announcement raises some stimulating and, in some respects, unresolved issues.
The moon lies beyond the sovereignty of any one nation. Under a 1967 agreement known as the "Outer Space Treaty," more than 100 states (including the United States, Russia and China) have abjured any claim of sovereignty over outer space, including the moon and other celestial bodies. In this sense, the moon (and the rest of outer space) is analogous to the high seas, an extra-national area in which states recognize each other's free right of navigation and peaceful use. Indeed, the Outer Space Treaty refers to outer space as "province of all mankind."
The Outer Space Treaty lacks any specific rules concerning ownership of natural resources, such as the mineral and water deposits said to reside on the moon. A later treaty, known as the Moon Agreement, drafted by a U.N. committee in the late 1970s, attempted to address this: it provided that an international regulator would oversee any mining of the resources of the moon and other celestial bodies within the solar system. It also pronounced the moon and planets to be the "common heritage of mankind."
The Moon Agreement was opened for signature in 1979 but failed to win the support of more than a handful of states. It met vociferous opposition within the United States, with some claiming it represented an attempt to "socialize" lunar resources. They argued (with some plausibility) that neither general international law nor the Outer Space Treaty barred private actors from extracting minerals from space and that the U.S. government should not sign a treaty that might impede such activity. These critics also observed that the Moon Agreement threatened to impede exploitation of the asteroid belt (which is said to contain significant mineral deposits). The treaty then languished and failed to gain more than a handful of signatories.
To date, actual exploration of the moon and asteroid belt (such as by NASA) has been scientific in nature. Only very recently has technology and private enterprise developed to the point where ownership of space resources is no longer a moot issue.
For example, some U.S. companies have announced plans to harvest the resources of the asteroid belt. In 2015 the U.S. Congress responded with the Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015, or SPACE Act. This legislation, signed by President Obama in late 2015, attempts to outline the rights of U.S. operators with respect to "asteroid resources," defined as any "abiotic resource in situ in outer space" located "on or within a single asteroid," including minerals or water.
It provides that a U.S. citizen involved in commercial recovery of asteroid resources will be entitled to "possess, own, transport, use and sell" the materials thus extracted, subject at all times to the international obligations of the United States. It also calls on the Executive Branch to "promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources."
Despite some ambiguities in its text, the broad policy behind the SPACE Act is clear. If extended to lunar exploration, it would permit U.S. private operators to extract, utilize and/or sell resources found on the moon.
Even with congressional support, a host of issues remain: Would other countries recognize the private ownership of minerals thus extracted from the moon? Would they recognize the right of private U.S companies to mine lunar resources? And if a foreign state refused to extend such recognition, could it impound a returning spacecraft carrying lunar cargo (assuming the craft landed in its territory)? Thus, while U.S. legislation and regulatory initiatives will be welcomed by private operators, they do not necessarily resolve all the issues associated with long-term large-scale mining of outer space resources.
For many centuries, states have cooperated in managing the world's oceans; through various treaties, there is a well-developed "Law of the Sea."
It is possible that the future exploitation of lunar resources — including by private operators — will require a similar degree of international cooperation.
— By Timothy G. Nelson, partner at the law firm of Skadden, Arps, Slate, Meagher & Flom