Space lawyers fret over outdated treaty on exploring final frontier

Moon exploration is about to enter a new period where missions from different countries – and companies – operate on the lunar surface.

It might look a little like the early mining days of the Wild West as each mission stakes its claim to lunar resources and explores different areas of the moon. So what makes you a good neighbor in space, legally? That’s where outer space lawyers come into play.

Deborah Peacock is a lawyer and engineer who owns an intellectual property law firm based in Albuquerque and New York. She specializes in legal issues within the spaceflight and aerospace industries. One of those issues concerns mining resources from the moon, which is something NASA and private companies have discussed for years.

Peacock explains that the primary space law utilized today is 55 years old. The United Nation’s Outer Space Treaty of 1967 was signed by 102 countries, and while there have been other treaties, they have not gained as much support. 

“A lot of that law talks about you cannot nationally appropriate the moon or other objects in space,” Peacock said of any nation claiming space resources.

However, the treaty did not account for the commercial space industry boom over the past 20 years.

“There’s nothing in there saying that private citizens can’t do that,” she said.

In the half-century since the first moon landing, Peacock said there has been a lot of “stretch and interpretation” of space law, but it all goes back to the 1967 Outer Space Treaty.

UN space law resolutions passed throughout the years have also guided countries on space-related conduct. According to the UN, they are widely accepted by the international space community.

In 2015, the US Commercial Space Launch Competitiveness Act said that a US citizen could recover resources in space. Both Russia and China were opposed to that concept, according to Peacock.

About 20 countries have signed NASA’s Artemis Accords. The Accords are principles for peaceful cooperation for the use of the moon, Mars, comets and asteroids, according to the document. Many of the key highlights in the accords refer to the Outer Space Treaty.

“It’s really that the US would be the leader in trying to develop more laws and regulations for what will happen for space exploration, space exploration and resource extraction,” Peacock said.

Ahead of the Artemis missions, NASA selected 15 private US companies to carry necessary science instruments and cargo to the moon as part of the Commercial Lunar Payload Services program, known as CLPS. There are nearly a dozen moon landers in production across the US with commercial companies.

NASA payloads will only make up a part of the manifest on commercial lunar landers and rovers. 

Astrobotic and Intuitive Machines will be the first private American companies under CLPS to send landers to the moon as soon as late 2022. 

The robotic missions will carry payloads for research institutions, universities and private citizens who have purchased space for their instruments or objects to get to the moon. Astrobotic’s DHL MoonBox program allows anyone to buy a small amount of space on a moon robot to send keepsakes to the moon. 

Peacock said the Outer Space Treaty also applies to these private missions, requiring private explorers to avoid “harmful contamination” of the moon and other celestial objects – essentially, no space littering. 

An Astrobotic spokesperson said the company would follow US space debris regulations for its MoonBox program. The boxes will stay aboard the Peregrine lunar lander.

Will the moon become the ‘Wild West’? Not if you launch from America 

The US isn’t the only country with big plans for the moon. 

China recently approved three robotic missions to the lunar south pole, starting with the first launch in 2024. China is interested in extracting helium three, which can be used for fusion energy.

“You would think this is the Wild West, and maybe it is,” Peacock said. “The law often develops after those problems. And from my perspective, that’s what’s going to happen here. But in the meantime, companies and countries are going to go to the moon and start extracting resources.”

The moon is seen as a jumping-off point to space that can be used to find water and other resources to create fuel and launch further into the solar system.

“There’s also platinum and rare earth metals there that people want. Then also, there’s water there, there’s ice, and there’s volatiles, which will be useful for fueling. Either going back to Earth or going elsewhere,” Peacock said. “So there are some really important resources on the moon that people are interested in.”

Even though mining on the moon is likely more than a decade away, Peacock believes private companies will be the first to succeed. However, in the US, many regulations and licenses are needed before even launching. 

To leave the planet from US soil, the list of agencies a private company might need approval from, depending on the mission, is expansive:

• Department of Transportation
• NASA
• FAA
• Department of Commerce
• National Oceanic and Atmospheric Administration
• Federal Communications Commission
• Department of Defense
• Department of State

And when a spaceship brings its bounty of space materials back to Earth, the IRS gets involved.

“Even the IRS talks about taxing whatever you bring in. If you’re on a US vehicle and you’re bringing in that resource, you’re going to get taxed,” Peacock said.

A spacecraft leaves and enters the country, which means US Customs regulations.

“You have to go through Customs when you come back,” Peacock said. “So you have the space companies, even though they say, ‘oh, yeah, we can go up there,’ they’re still going to have to be responsible if departing from the US.”

Mining on the moon has been talked about for decades but appears closer to reality. It still comes down to who is first.

“Whoever gets there first is going to be able to get those resources,” Peacock said. “There’s going to be gray areas of the moon and not so gray areas of the moon.”

While regulations bind US companies, getting every country to agree to the same guidelines will be hard, if not impossible.