Lunar mining raises key legal questions as new space race heats up

According to international space laws, no nation can claim sovereignty over the moon or other outer space entities. That’s why NASA is turning to private companies to advance its outer space goals. 

"If we want to maintain our lead, then we need to continue to invest and ensure that we're the ones setting the pace and not another entity," said Michael Usowski, senior defense intelligence analyst for space and counterspace at the Defense Intelligence Agency (DIA).

The initial space race to the moon brought about the United Nations 1966 treaty, which determined nations could not claim property rights in space. In the new space age, officials warn, China could ignore those laws and norms to advance its goals. 

"No sovereign country is supposed to plant that flag," DIA's John Huth, chief of the office of space and counterspace, said. "But we've also seen China do things in the South China Sea where they've built islands and then have claimed some exclusion zone around it. So, those are the things that we certainly want to keep an eye on." 

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Lawmakers are also watching China and warn a new set of rules could be necessary to make sure everyone plays fair.

"We need some updated space law for sure. As space becomes not only available for mining, but it's really becoming a warfighting domain as well," Sen. Kevin Cramer, R-N.D., said.

With rapidly advancing space programs, there are now more questions over who can explore and mine the moon’s resources. 

"It’s kind of opaque as far as what and when it comes to mineral extraction, whether or not there are any prohibitions against actually taking minerals away from the moon or another celestial body and then bringing them back to the earth," Usowski said. 

The U.S. and other countries have been passing their own laws to allow for further exploration. 

"We make our own rules, so to speak," Huth said. "There's nothing that really precludes any one country from extracting minerals from the moon or other planets. It's a matter of developing those best practices."

A 2015 U.S. law asks private companies to explore outer space resources. President Donald Trump’s 2020 executive order encourages advancements in space mining. 

"An interesting piece on the treaty is it only looks at nation states. It doesn't really pay much attention to commercial concerns," Usowski said. "So, that's an area that I think greater specificity would help as we see the greater commercialization of space."

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The U.S. plans to return to the lunar surface by the end of the year by utilizing commercial partnerships. Private company Astrobotic will provide the launch and lander for the unmanned Peregrine Mission. 

"We have a flourishing commercial space sector in the United States, and I think encouraging that continued growth, working with our national organizations such as NASA, will allow us to be the leaders for that change for the positive," Huth said.

NASA plans to contract commercial partners for up to five planned rover missions next year. It’s all part of the Commercial Lunar Payload Services Initiative. China’s space program aligns more closely with its government.

"China is interesting in that there is a large amount of fusion between the civil and the government sector. So, it's very difficult to separate the commercial concern from the government concerns," Usowski said. "They're very much intertwined with each other. So, one could reasonably assume that if a commercial entity is working on it that it's funded and supported greatly by the nation state."

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Satellites and other objects in orbit are compiled in national registers by country and reported to the United Nations. The U.S. has more objects in orbit than any other country. Landing, building and digging on solid ground in outer space is forcing the international community to rethink that shared space. 

"There’s certainly an understanding on Capitol Hill of the necessity to maintain that strong presence both from a government perspective, but also from that commercial perspective," Huth said. 

Lawmakers and scientists agree while staying ahead of China is important, more needs to be studied about outer space resources before we consider it a reliable source to mine. 

"We need a dramatic increase in our ability to mine and process minerals both here in the United States and around the world," Sen. Chris Coons, D-Del., said.