Law and Policy

Nearly every major government space agency has begun talking about space resources in their long-term plans. ESA has recently outlined these plans in a formal space resources strategy document[64]. There has also been significant debate surrounding the legality and safety of utilizing space resources and the regulation of outer space in general. Within the past few years, a handful of nation-states have passed laws protecting the rights of their citizens to possess and use space resources. However, the ability to stake a claim and assessing the environmental impact of extraction efforts are a bit more ambiguous.

The Outer Space Treaty of 1967 forms the basis for international space law today, but it provides insufficient guidance for regulating space mining operations on celestial bodies (ie the Moon and asteroids). Article II of the treaty states, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means.”[65] This strictly forbids any government to claim a celestial body, however, national legislation can allow private entities the legal right to engage in space mining activities. The US and Luxembourg are two countries that have developed legislation like this. The legality of mining claims and exclusion zones, among other items, are still being actively discussed by the United Nations and other international working groups, including the Hague Working Group.

Officially called The Hague International Space Resources Governance Working Group, this international body has been working since 2016 to assess the possible need for governance of space resource activities and to lay the groundwork for such a framework. In November 2019 it adopted the Building Blocks for the Development of an International Framework on Space Resource Activities[66]. This report provides twenty provisions that address different aspects of space resource activities, along with objectives, principles, and scope of the governance framework.

These building blocks do not comprehensively address space resource activities, advocating instead that they should be incrementally addressed as technology and practices change (principles of adaptive governance). Ultimately, this framework is aimed at “creating an enabling environment for space resource activities that takes into account all interests and benefits all countries and humankind.”

Current long-held legal precedents on Earth (which has a breathable atmosphere, biological ecosystems, hydrologic cycles, and standard gravity) do not always hold up to scrutiny when assessed against the vastly different physical environments found in space. Scientific study of offworld environments helps to inform discussions about these policy frameworks.

For example, the interaction between rocket exhaust plumes with regolith becomes a major risk for landing operations[67]. Building a base of lunar surface infrastructure requires landing multiple spacecraft with pinpoint accuracy near one another. Studies of the Apollo landings have shown that lunar regolith particles can reach velocities up to 6 km/s, which is greater than the Moon’s escape velocity. Apollo 12 landed near the Surveyor 3 lunar lander, essentially sand-blasting its surface. This highlights the fact that a landing operation potentially puts nearby surface hardware, as well as orbital spacecraft, at risk.

NASA is currently studying this problem in partnership with SpaceX, as part of the development Starship[68]. Starship is designed to land vertically on a variety of surfaces, and is orders of magnitude larger and more powerful than any previous lunar lander. Beyond the direct risks of damaging other space objects, ejecta plumes may require the creation of exclusion zones around other these objects.

The legal implication is that any heritage spacecraft or one that is operating in a particular location would essentially hold an exclusion zone under basic principles of non-interference. US legislators unsuccessfully attempted to pass a law in 2019 officially designating the Apollo landing sites as protected “human heritage”[69]. This becomes problematic under many interpretations of the current international frameworks that do not allow territorial claims.

Beyond the Moon, a recent study modeled the effect of debris generated from hypothetical mining operations on a handful of NEOs[70]. Meteoroids are already a natural background level threat that can cause a major malfunction or disable a satellite in Earth orbit. As the number of satellites increases, any uncontrollable debris exacerbates the hazard for remaining satellite and spacecraft operators.