Is There a Legal Path to Commercial Mining on the Moon?
The introduction describes how current lunar mining strengthens political incentives for commercial lunar activities. The present Chinese explorative excavation may bring greater clarity about the extent of commercial mining opportunities. It also raises issues regarding the lack of coordination between the lunar Artemis Program of the United States and the independent Chinese Lunar Exploration Program and raises uncertainties regarding the legal framework for lunar mining.
Part I examines the fundamental law of the 1967 Outer Space Treaty (OST) regarding lunar mining. It briefly reviews the 1979 Moon Agreement, the Liability Convention,4 lunar environmental protection, peaceful uses, and applicable law of treaty interpretation.
Part II discusses efforts to implement the OST in a way that makes mining on the Moon possible. It examines the Building Blocks for the Development of an International Framework on Space Resource Activities (Building Blocks Proposal), which results from a three-year international interagency, an interdisciplinary working group at the Institute of Air and Space Law, University of Leiden. Within the scope of existing space law, the working group prepared an extensive international framework for states to authorize and supervise space resource activities, including lunar mining by private companies. It proposes reasonable safety zones around each mining project. The Building Blocks Proposal is now before the United Nations Committee for the Peaceful Uses of Outer Space (COPUOS).
Part II also describes the Artemis Accords, initiated by National Aeronautics Space Administration (NASA), an independent agency of the United States (U.S.). As of October 2021, twelve national space agencies have entered into bilateral accords with NASA to establish basic rules for lunar mining by commercial companies. The parties simply agree to respect each other’s lunar mining activities. Through the Artemis Accords, space agencies agree on operating rules for mining which include reasonable safety zones. Part II briefly discusses the Moon as a Commons as it affects lunar mining. It also examines possibilities for soft law regulation of lunar mining.
The conclusion stresses the need for multilateral regulation of lunar mining. It urges COPUOS to adopt guidelines on lunar mining. It also recommends that the United States should eliminate the Wolf Amendment, which is a barrier to the coordination of lunar mining between the two space powers currently most active in lunar exploration and use.
Copyright (c) 2021 Paul B. Larsen
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