India’s Moon Landing Highlights Legal Gray Zone for Lunar Mining
Nations lack consensus on rules for exploration and commercial activity
By Jacob Gershman Updated Aug. 24, 2023 The Wall Street Journal
India won the race to land a spacecraft on the moon’s south pole, but its success has cast attention on the next stage in the booming space sector: how the moon and its potential treasure trove of resources will be governed.
The moon is a potential trillion-dollar payload of precious minerals and revolutionary fuel sources. Governments, investors and state-owned enterprises on several continents are working on plans for exploiting the moon’s once-thought-unreachable deposits and water ice.
It is also a barren legal landscape, with no consensus among the world’s superpowers on how exploration and commercial activity should be regulated.
No country can claim ownership of the moon. But the U.S., China and Russia and other countries are at odds over whether a Cold War-era treaty governing space law allows for private ownership of resources harvested from the moon, leaving it unclear how competing companies might secure and enforce mining rights.
At the moment, lunar mining would be governed by the 1967 Outer Space Treaty, entered into by the U.S. and more than 100 other countries. That treaty said countries are free to explore the moon and other celestial bodies. But the treaty also said that outer space “is not subject to national appropriation by claim of sovereignty.”
The U.S. government has taken the position that the treaty doesn’t preclude private ownership of lunar resources. A 2015 law gives U.S. citizens engaged in space mining the right to “possess, own, transport, use and sell” resources extracted from the moon or asteroids.
As part of NASA’s lunar efforts, the U.S. is also advancing a set of nonbinding principles known as the Artemis Accords that countries must endorse to participate in the program.
Signatories affirm “that the extraction of space resources does not inherently constitute national appropriation” under the Outer Space Treaty. As of July, 28 countries, including India, have signed on to the pact since NASA announced it in 2020.
Spacefaring China and Russia, whose own lunar probe crashed into the same south pole region of the moon days earlier, have indicated they want no part of the accords. They are trying to build their own lunar research stations. And their officials and state media have faulted the agreement as overly geared toward American political and commercial interests.
In past official pronouncements, Beijing has said the fruits of space mining should be equitably shared. China views a lunar presence as key to its goals of asteroid mining and space manufacturing.
Its plans, however, could directly result in state-owned enterprises scooping up lunar resources—and that could pose a conflict with the 1967 treaty and its ban on national appropriation, according to Michael Listner, an attorney and specialist in space law.
The United Arab Emirates and Luxembourg have each enacted laws similar to the 2015 U.S. law. Luxembourg is also positioning itself as a kind of Delaware-like corporate home for space businesses. Japan enacted its own space-resource law two years ago and recently granted a license to a private startup to conduct business on the moon, allowing it to recover lunar soil and sell it to NASA.
Write to Jacob Gershman at jacob.gershman@wsj.com
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Appeared in the August 25, 2023, print edition as 'As Moon Race Heats Up, Lunar Law Trails'.