Humans want to mine the moon. Here's what space law experts say the rules are
Lunar exploration will be a test for space resource management. Will we pass or fail?
Mining the moon might sound like a concept that belongs in a science fiction novel, but it's likely to be a part of reality in the not-so-distant future. That's made it a hot topic of discussion among space lawyers — yes, there are space lawyers — on Earth.
When Michelle Hanlon, co-director of the Air and Space Law Program at the University of Mississippi, tells people what she does for a living, she says most people are confused.
"Most people think I'm a real estate lawyer — what kind of space do you sell?" she said, laughing. But in fact, Hanlon is an expert in the law governing outer space.
There are several international agreements governing space, including The Outer Space Treaty, which was drafted during the Cold War and signed by more than 100 countries including the United States, China and Russia.
That treaty, which states "outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty," is what prevents countries from swooping in and declaring ownership over the moon.
"You cannot plant a flag anywhere in space and say this now belongs to the United States, this now belongs to Russia, this now belongs to China," Hanlon said.
But when it comes to mining the moon for resources, things get more complicated. Legal experts are working on teasing out exactly how that treaty applies when nations — or private companies working on behalf of nations — start harvesting resources from the moon or asteroids.
"By building a mining operation, some would argue ... you're actually claiming sovereignty by another means," Hanlon said. "We have to learn to do something in space that we haven't yet learned how to do on Earth. And that is: be mindful and respectful of each other."
That will be put to the test in the next few years, as major space-faring nations race to establish bases on the moon.
NASA's Artemis mission, which the Canadian Space Agency is contributing to, hopes to send humans to the moon by 2030.
This time around, the plan is not just to visit but to stay for good. That includes building a base camp at the lunar south pole, as well as a lunar gateway — a spaceship that would orbit the moon.
China and Russia have their own lunar base in development, a collaboration between the two countries called the International Lunar Research Station.
In order to avoid hauling resources from Earth to sustain those habitats, space programs are hoping to harvest resources from the moon's icy surface. That includes water — essential for human life and a source for fuel when broken down into hydrogen and oxygen — as well as rare earth minerals and helium-3, a potential source of energy.
NASA has selected four companies to "collect space resources" on its behalf and launched a competition for the public to design, build and test prototypes to excavate icy moon dirt.
"The moon is pretty large and the moon itself isn't going to get crowded, but the areas where we know there is water are going to get crowded," Hanlon said.
Not the Wild West
Given the track record of mining on Earth, including the human toll and environmental damages, there are concerns the same mistakes will be repeated when humans become a truly space-faring species.
"I do worry at times," said Kuan-Wei Chen, a legal expert in space law and the executive director of McGill University's Centre for Research in Air and Space Law.
"We don't want to have, again, the repeat of history, when countries and commercial operators go to what they call a 'new world' to start fighting and engaging in conflict over resources."
That's why, he says, it's up to academics and governments to emphasize that there are laws governing space.
"Space is not a legal vacuum. It's not the Wild West. It should not be the Wild West."
To help guide countries through those existing frameworks, Chen worked with a team at McGill University as well as a coalition of international experts to produce a manual on international law in outer space.
Given current geopolitical tensions, including Russia announcing it will leave the International Space Station and build its own, Chen says it's better to work with the treaties that already exist rather than try to get countries to agree to a new one.
But the outer space treaty is open to interpretation when it comes to mining.
"The law says very clearly it's not allowed to appropriate the moon. Now, does that mean you're not allowed to extract and use your resources that are found in the soil or the subsoil of the moon? That's not clear," Chen said.
Generally agreed: If you mine it, you own it
NASA introduced the Artemis Accords in 2020, as what it describes as establishing "a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy."
In a statement sent to CBC, a spokesperson said that "extraction of space resources does not inherently constitute national appropriation."
But Russia and China have not signed the U.S.-led accords, and experts say they are unlikely to do so.
"Russia and China believe very strongly that the only place you can make space law is within the United Nations and they see the Artemis Accords as trying to circumvent that," Hanlon said.
"I think the US would say we're not circumventing, we're just jump starting."
Regardless, Hanlon said the Artemis Accords' interpretation of the Outer Space Treaty, as it applies to mining, is in line with what has been generally accepted. She says that takeaway — which China and Russia have never disagreed with — can be summed up as "if you mine it, you own it."
As nations inch closer to establishing a presence on the moon and beyond, Hanlon and Chen agree there needs to be more awareness about how international law applies.
The hope is that nations will respect the current treaties and find a way to harvest resources equitably and sustainably.
If they don't, or if conflict arises, the international community will have to rely on diplomatic pressures — or there is the potential to turn to the International Court of Justice.
"We need to make sure that whatever we do in outer space and also on the moon will not have a detrimental impact on us right now, but also the future generation," Chen said.
"These international laws ... were drafted with those guiding principles of ensuring that space is a peaceful domain, and ensuring that there is a sustainable future for the future of humankind in outer space, on the moon and on other planets."
ABOUT THE AUTHOR
With files from Alice Hopton