Lunar exploration providing new impetus for space resources legal debate

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WASHINGTON — Efforts by space agencies and companies to send missions to the moon and use water ice and other resources there have renewed debate about the international legal regime regarding such resources.

Much of the debate about the extraction and utilization of space resources over the last several years has focused on asteroid mining. Initiatives by two companies in particular, Deep Space Industries and Planetary Resources, with the long-term goal of mining asteroids led to the passage in 2015 of the Commercial Space Launch Amendments Act, which contained provisions that give such companies rights to resources they extract from asteroids.

Both Deep Space Industries and Planetary Resources, though, have been acquired in the last year, and no longer appear to be pursuing asteroid mining. No other companies appear to be as advanced as those two companies were on similar initiatives.

However, the international legal debate about space resources has not died down. “This is looking like something that’s going to happen in the real world in the relatively near future. The focus has shifted now from asteroids to the moon, and it’s shifted from metals to ice,” said Gabriel Swiney, a State Department attorney who deals with space law issues, during a Sept. 5 meeting of the NASA Advisory Council’s Regulatory and Policy Committee.

That shift is from proposals from a variety of government and private organizations to send spacecraft to the polar regions of the moon, where water ice may exist is significant concentrations in regions of craters that are in permanent shadow. If that ice does exist and can be extracted, it could be used for propellant or life support to support human bases on the moon or other activities in cislunar space.

NASA frequently cites the presence of water ice at the lunar poles as a key motivation for returning humans to the moon, and that ice could make long-term activities there sustainable, hence the interest from an advisory committee. “This is not an issue for the future, this is an issue for now,” said Mike Gold, chairman of the committee. “This capability isn’t a luxury. It’s a necessity.”

Discussion about an international legal regime for the use of space resources has been ongoing for the last several years, with passage of the 2015 U.S. law stimulating that. Swiney said that the view of other countries about the U.S. law have ranged from “curiosity” from a small number of nations to negative reactions from others, either for broader political issues to substantive concerns with the law.

Those views have been changing, he said, in part because of extensive outreach by the U.S. government and the private sector. A number of close allies that previously held no opinion about the law, including Australia, Canada, New Zealand and the United Kingdom, are now considering their own space resources policies.

Another example he mentioned was China, which originally opposed the U.S. law but now generally accepts there is a right to space resource utilization. Swiney said the most likely reason for that shift is that China itself is considering using lunar and other space resources in its long-term exploration plans.

The growing interest in lunar resources, and shifting positions among some nations, comes as the debate about space resource rights is about to enter a new chapter. The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) will establish a working group next specifically devoted to space resources. Swiney said that group will likely set up a three- to five-year “work plan” for addressing the issue.

The outcome of that that effort could range from non-binding recommendations for COPUOS members to adopt to the beginnings of an international treaty on the issue. “I’m not saying this is what’s going to happen, but if one were to negotiate a new treaty on a topic, this is usually how you would start,” he said.

Swiney said that countries like Greece and Germany have stated they want to use the new working group to “start negotiations on a comprehensive framework on space resource utilization,” language that could mean a treaty. Germany, he added, is rumored to be considering acceding to the Moon Agreement, a separate treaty that treats celestial bodies as the “common heritage of mankind” but one that most major spacefaring countries, including the United States, has not adopted.

The Regulatory and Policy Committee spent the bulk of its several-hour meeting working on recommendations for the full NASA Advisory Council calling on NASA to work with other government agencies to adopt its own set of principles supporting space resource utilization, one that follows both current U.S. law and existing treaties. Those principles would include notifying the U.N. of any space resource extraction activities in order to avoid potential interference with other space activities.

Those principles would be presented at the COPUOS discussions as a U.S viewpoint that could be an alternative to other, more restrictive proposals that people like Gold fear could interfere with everything from commercial robotic lunar landers to the Artemis program of human lunar landings and beyond.

“The extraction and utilization of resources is going to be critical for the success of not only going forward to the moon, but the spine of Artemis, the purpose, is to get to Mars. Resource utilization is going to be absolutely vital for Martian devleopment,” Gold said. “My greatest concern, and what we don’t want to have happen, is for anything to take place in the international community that would prohibit, burden or otherwise slow the progress of Artemis.”