If you were to land on the moon today and conduct a meticulous survey of its surface, you would encounter several U.S. flags and a solitary Chinese flag, planted firmly in the lunar dust. These national symbols, however, carry little legal weight in the context of land claims and territorial jurisdiction in outer space. International agreements have established that no nation can assert ownership over land in outer space or on celestial bodies, including planets, moons, or asteroids. Such extraterrestrial realms are, in the words of the Outer Space Treaty signed by the U.S. and many nations in 1967, “the province of all mankind.”

Yet, as the world prepares for a new space industry race, a contentious issue looms large: Does the Outer Space Treaty prohibit private industry, particularly in the realm of space mining? If a company like Acme Moon Company were to embark on a mission to collect a moon rock from the Sea of Tranquility and return to Earth, would it gain full property rights over the rock, or would it be in violation of international law?

Space Mining: A Treasure Trove of Resources

The solar system harbors vast, untapped resources, the true potential of which humanity is only beginning to grasp. Numerous companies and divisions within existing corporations have emerged with the hope of extracting these resources.

For instance, Davida, the seventh-largest asteroid in our solar system, is estimated to contain an astounding $27 quintillion ($26,990,000,000,000,000,000) worth of metals, as well as nitrogen, ammonia, and hydrogen. Meanwhile, the “golden asteroid,” known as 16 Psyche, is composed of iron, nickel, and gold and is valued at a still staggering $10 quintillion. NASA is set to launch a space probe in October 2023 to survey the Psyche asteroid, and the agency has signed contracts with four space mining companies to collect samples from the moon, marking a significant step in establishing the precedent for celestial materials extraction.

The Complex Question of Ownership

The question of who can legitimately claim ownership of these coveted space resources remains uncertain. During the height of the Cold War, around 60 nations, including the United States, signed the Outer Space Treaty, which explicitly prohibited the militarization of space and the assertion of sovereignty over it. Article 2 of the treaty emphatically states that space and its contents are “not subject to national appropriation by claim of sovereignty, by means of occupation, or by any other means.”

This article has been at the center of the debate over whether private companies like Acme can engage in space mining. Critics argue that Article 2 applies, preventing private entities from collecting celestial materials. However, proponents within the space mining industry point to Article 1, which stipulates that space “shall be free for exploration and use by all States without discrimination of any kind.” They contend that Article 2 is directed solely at nations and does not encompass private enterprises.

Several countries, including Japan, Luxembourg, the United Arab Emirates, and the U.S., have enacted laws that recognize the rights of private citizens to possess space materials. In 2015, the U.S. initiated this trend under former President Barack Obama, enacting legislation that prohibited space miners from causing “harmful interference in outer space.” This effort gained momentum during the Trump Administration, which issued a 2020 executive order emphasizing the national policy of encouraging “the public and private recovery and use of resources in outer space, consistent with applicable law.”

In addition, the executive order denounced the “Moon Agreement,” a treaty signed by a few nations in the 1970s and 1980s but not by the U.S. This agreement functions as an environmental law for the solar system, prohibiting any disruption of celestial resources. The Artemis Accords, organized by the Trump Administration in 2020, further echoed the U.S.-aligned interpretation that Article 2 does not apply to private industry. Several nations participated in this summit, but notably absent were Russia and China, America’s primary space rivals.

The Artemis Accords, although claiming to reaffirm the Outer Space Treaty, have faced criticism for expanding the interpretation of commercial space law while excluding major global players. This has led to concerns that it may be perceived as the rulebook of an exclusive club rather than a genuine multilateral agreement.

As the world races toward a new era of space exploration and resource utilization, these legal ambiguities persist, making it essential to find common ground on the regulations governing space mining and commercial activities beyond our planet’s boundaries.

By Impact Lab