THE LEGAL MOONSCAPE: NAVIGATING THE LEGAL AND
SUSTAINABILITY CHALLENGES OF LUNAR MINING AND
SETTLEMENT

L. DENOYELLE

Corresponding Author: Lucillien Denoyelle, PhD candidate at the Sorbonne Institute for Legal Research (IRJS), Sorbonne Law School, University of Paris 1 Panthéon Sorbonne.

Abstract

This paper examines the legal and sustainability challenges associated with lunar mining and settlement. It scrutinises the current international legal framework, particularly the Outer Space Treaty, and its implications for the potential appropriation and utilisation of lunar resources. It investigates the compatibility of the non-appropriation principle of Article II of the Outer Space Treaty with the extraction of lunar resources, suggesting interpretations that could reconcile economic activities and environmental challenges within the existing legal framework.
The discussion encompasses the economic and legal aspects of sustainability, emphasising the interconnectedness of the Moon’s ecosphere and econosphere. The paper underscores the importance of establishing a robust legal regime that incorporates sustainability provisions to prevent ecological degradation and ensure the responsible use of lunar resources. It evaluates the role of private agreements in the development of technologies and strategies for sustainable lunar exploitation and settlement, positing that such collaborations are essential for advancing both scientific and commercial interests.
Further analysis is devoted to non-standard legal mechanisms in governing space resource activities. The paper suggests that future space law will likely be shaped by the coordination of public and private international law mechanisms, which can provide flexible and comprehensive governance frameworks.
In conclusion, the paper advocates for a balanced approach that fosters innovation and commercial development while safeguarding the lunar environment for future generations. The findings underscore the critical importance of integrating legal, economic, and environmental considerations in the governance of lunar activities.

Key words: Space Law, Space Resources Appropriation, Lunar Mining, Lunar Settlement, Private International Law, New, Space, Sustainability in Space.

 

Introduction

The Little Prince would not be pleased to learn that people are planning to harvest natural space resources within the stars. Yet since the (space)ship of this idea has already sailed, we shall limit ourselves to bear in mind the lessons of the tale.
One of the questions which can be raised regarding a Moon settling perspective is not only the «how?», but also the «why?». Settling on another celestial body — other than the Earth — can be seen as a pure adventure, or through the prism of scientific study, or even for the «economic development and long-term human survival» (1). Thus, one of the reason behind space settlement would be to make use of natural resources nested in celestial bodies to «mak[e] life multi-planetary» (2).
The first step would be to test extensive technologies and capabilities in a reachable celestial body, as to make use of a permanent base to make significant fuel savings by avoiding the Earth’s gravitational pull (3). Given this, the Moon appears as the obvious choice, as the most accessible celestial body from Earth for manned missions which is potentially rich of resources to produce rocket propellant, and which benefits from reduced gravitational attraction (4).
From the near-future perspective of the Artemis missions and the International Lunar Research Station, and for a long-term perspective of multi-planetary settling, the Moon is of special importance for space exploration (5). However, lunar settling implies the active and permanent presence of humans on its surface, which also means the impact of human life and activities on the lunar lands. Such missions are not without any interference with the non-appropriation principle stated in Article II of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter the «Outer Space Treaty») (6).
Whichever reason may lead humans to settle on celestial bodies, other than the Earth, it would no doubt lead to an in situ resources management to avoid non-necessary travels from the Earth, but also the transportation and use of these resources in orbit or back down on Earth (7). Such resources would be of various forms (8). However, as part of this paper, only material resources which can be mined and harvest will be studied. These material resources exclude the question of the appropriation of frequencies or even orbits for example but encompass various realities.
Thus, which legal regime applies to the use and exploitation of natural space resources in the context of lunar mining and settlement?
First and foremost, it is necessary to understand how the mining of mineral resources is connected to any potential Moon settlement through the prism of the Moon econosphere. It will then be possible to discuss the utilisation of natural space resources through appropriation mechanisms.

The Moon Eco(no)sphere

The Moon settlement can be understood as a reflection of our own humanity. At first, the ideological motivation to race for the Moon was obvious: a war against two blocks which wanted to reflect their own political and socio-cultural structures as an end, both ideologically and technologically (9).
Nowadays, the ideological confrontation between «civilisations» is still persistent but is far less obvious. What is immediately more striking is the difference between states’ economic models and their desire to appear as legitimate players worldwide (10). This does not mean that ideological competition is absent; in fact, the division of the international geopolitical landscape, marked by the Western-led Artemis Accords on one side and the Sino-Russian-backed International Lunar Research Station with their allies on the other, strongly suggests otherwise. However, this ideological competition is also merged in a global economic competition and the use, from both sides, of New Space private companies. This renewed competition is notably seen with the development of venture capital as one of the main sources of funding for space missions, as a form of «‘pro-space’ capitalist activism» (11).
A space race definitely still exists, or more exactly: it has been renewed in what we can call a New Space race, shifting from pure ideological confrontations to the clash of different competitive economic models with a same objective: settling humanity among the stars, preferably with like-minded allies on an international scale (12).
However, this renewed space race does not only influence the Moon’s econosphere — understood as the economic domain of space activities on the Moon — but also its ecosphere — understood as its ecological domain (13). It can be discussed whether a potential sociosphere would be impacted by Moon activities — particularly concerning the Moon’s social, religious and mythological value around the world — but this question alone would deserve a paper of its own.
Thus, it is necessary to understand which lunar natural resources would be exploited and used in case of a Moon settlement before assessing the legal regime applicable to the exploitation of natural space resources on the Moon.

Moon’s natural space resources

As stated by Howard A. Baker in his 1996 D.C.L. thesis:
“The foundations of international environmental law are rooted both in the surroundings («environment») in which human beings («humankind») conduct their activities and in the nature of humankind’s attitude toward, and relationship with, its environment (14)”.»


Moon’s minerals

The humankind can sharp, delimit and change its environment via its outer space activities. Such modifications can be conscious attempts to modify this environment (15); it can also be damages or modifications due to international activities (16); it can finally be modifications caused inadvertently without a common international consciousness and appears as a byproduct of the human activity done by one nation or another (17).
In the case of the Moon, since Apollo and Luna missions, scientist are aware of its surface composition, which is mainly composed of: silicon dioxide (SiO2), titanium dioxide (TiO2), aluminium oxide (Al2O3), chromium oxide (Cr2O3), iron oxide (FeO), magnesium oxide (MgO), calcium oxide (CaO), sodium oxide (Na2O), potassium oxide (K2O), phosphorus pentoxide (P2O5), and manganese oxide (MnO) (18).
Furthermore, Moon’s highlands appear «light» from Earth because it is composed mainly of anorthosite (which are plagioclase rich rocks from mainly plutonic activities), whereas the «dark» regions are maria composed mainly of basalt (formed from the rapid cooling of low-viscosity lava, like the activity of the effusive volcanoes we know well on Earth).

Ice water on the Moon

The last lunar mission of the Soviet Union, Luna 24, has revived the debate of an anhydrous Moon.19 Without entering too much into historical details, it is now well-known that water (H2O) exists on the Moon. For example, the recent Chinese Chang’E-5 lander returned 1.731 kilograms of Moon’s surface samples on 17 December 2020 and detected a paired O2/H2O presence in some samples (20). However, liquid water does not exist on the Moon. It is only in its solid form (ice water) and in addition to other molecules in Moon’s rocks that H2O can be found, the lack of atmosphere instantly vaporising potential liquid water.
The reachability of ice water near the lunar poles for future missions, and utilisation of water as resources is currently discussed (21). The ability to reach and extract water, in whatever form, would be a significant competitive advantage over the establishment of lunar bases. It would also sharpen rivalries while celestial bodies must be of free use and free access to everyone. Such extraction of resources would potentially hinder exploration of the lunar surface by other stakeholders.
Indeed, Moon’s natural resources could be of great use when building and consolidating permanent lunar infrastructures, whether to lay foundations or cover habitats with regolith to protect the inhabitants from some of the radiation and high-energy particles that cannot be blocked by an atmosphere, unlike on Earth. Moreover, water (if the individualisation of H2O molecules were possible from lunar rocks or directly from ice) could be used by astronauts for hydroponic cultivation and drinking water, and even used to produce rocket propellant, most recent rockets using a mixed propellant of liquid oxygen and liquid hydrogen (LOX/LH2). This would permit to make the Moon the first outpost for further deep space missions.

The legal regime applicable to the exploitation of natural space resources

The profitability of the mining and the utilisation of natural space resources remains unknown. As David Collins stated:
“No country is likely to undertake the enormous risks, economic and otherwise, associated with Mars colonization without the legal certainty that their rewards will not be distributed to others (22).”

This argument is as true for Mars missions as it is for lunar missions, during which natural space resources can be exploited and micro-gravity experiments can be carried out, but which will have to offset the costs of these missions (23).

From a Law and Economics point of view

According to Law and Economics theory (24), it is possible to apply an analogy between the management of goods and needs, and the necessary adjustments due to the scarcity of resources on the one hand, and the scarcity of laws governing natural space resources utilisation in anticipation of a growing demand from space actors on the other hand.
Firstly, outer space — and notably natural space resources — is not necessarily limited, but the reachable resources that can be exploited by human beings are limited and may lead to an increasing need. Thus, natural space resources are necessarily virtually limited at a given period due to technical and technological constraints. For some economists, outer space should even be seen, economically speaking, as a common property resource (25) which should necessitate international structures to exploit these resources (26) One may identify the issue of the tragedy of the commons (27).
Then, considering the corpus juris spatialis, the issue of natural space resources exploitation remains largely unexplored. In all and for all, at the time of writing, only four states have enacted space laws pertaining to the definition of natural space resources and their potential use or appropriation (28) There are also some countries with a comprehensive space law framework but without clear space resources utilisation provisions, like France and Denmark for example (29).

The contribution of the Artemis Accords

Yet, the most comprehensive framework enabling natural space resources utilisation is the Artemis Accords, notably in its Section 10, emphasising that:
“[T]he extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty (30).”

One may criticise the rationale of this provision, criticising the mere idea of the exploitation of natural space resources regarding the non-appropriation principle of Article II of the Outer Space Treaty. Indeed, the right of ownership of a good is typically defined and guaranteed by states by virtue of their fundamental or consecutive laws (31). Moreover, the appropriation of space resources by a citizen of a country, as part of the nation’s people, could potentially be viewed as an indirect form of “national appropriation.”
As such, the legal regime applicable to the utilisation and the appropriation of natural space resources remains in query.

Natural space resources utilisation through appropriation mechanisms

Even before discussing the non-appropriation principle, it is interesting to bear in mind that Article I, paragraph 2, of the Outer Space Treaty grants the freedom of exploration and use of outer space, including celestial bodies:
“Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies (32).”

The free use and exploration of outer space is therefore the fundamental principle of the Outer Space Treaty. It should be understood as non-economic and economic activities due to the exploitation of the outer space, and grants also freedom to governments to use outer space for economic and non-economic purposes (33).
Nevertheless, it is important to consider Moon mining activity in the light of the non- appropriation principle (A) and the space sustainability regime for lunar infrastructures (B).

The Moon mining activity in the light of the non-appropriation principle

Various interpretations have been discussed and it is of the utmost sensitivity to decide on the exact interpretation to be given to Article II, which 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 (34).”

Contradictory interpretations of the non-appropriation principle

For some authors, the non-appropriation principle of Article II of the Outer Space Treaty states a clear prohibition of sovereignty, and thus bans any form of private ownership or any inter alia territorial and sovereign claims to celestial bodies and the outer space (35)
For other authors, the non-appropriation principle must be read literally. The text of the Article II would therefore only tackle national appropriation and should not been applied to individuals and companies. According to Stephen Gorove:
“[A]n individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space (36).”

Of course, the issue of appropriation of extraterrestrial resources and objects remains a challenge because, as a matter of principle, states allow and grant ownership and the protection of their rights against third parties. Thus, transitively, the private ownership is conditional on the right conferred by a state on its territory in respect of a person or a group of persons, notably its citizens.
Nevertheless, this reasoning overlooks the fact that, as international legal subjects, states have the ability to interpret texts that affect them. Thus, they could read Article II as not explicitly prohibiting private ownership of space resources, or as not granting ownership rights directly, but rather recognizing the active use and control of these resources.
Moreover, it is necessary to address the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter the «Moon Agreement») (37). Our paper intends to focus mainly on provisions affecting of space-faring states, yet none of them ratified this agreement, and some of them even withdrawn themselves (38). However, discussing space resource appropriation without analysing the Moon Agreement is a mistake as it is a binding instrument for some countries, and the preparatory works and debates leading to the Moon Agreement are very valuable in terms of understanding the notions of appropriation that we discuss today.
In our opinion, as the Moon Agreement clarified the non-appropriation principle, pointing out that private law subjects should also be concerned and that the placement of infrastructures cannot create rights of ownership, it is mainly because these issues were not clear in the Outer Space Treaty and therefore deserves clarification (39).

Current interpretational tendencies regarding the appropriation of natural space resourcess

Interpreting a public international norm without considering the scope that states allow it to have would be a mistake. The theoretical reasoning in favour of prohibiting ownership rights on natural space resources must be discussed, and a teleological analysis of the corpus juris spatialis is thus necessary.
In our opinion, the US, Luxembourg, UAE and Japanese space laws are a clear hint on how space-faring states and space-economic hubs wish to interpret Article II of the Outer Space Treaty, which can be summarised as a licence to appropriate natural space resources for private companies and individuals (40).
Moreover, Section 10 of the Artemis Accords, entitled: «Space Resources» includes, in its paragraph 2:
“The Signatories emphasize that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty (41).”

Which can also be read in the 2020 US President Executive Order formula:
“Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law. Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons. Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law (42).”

It seems fairly likely that the first exploitation and appropriation of outer space resources will be carried out within the framework of these Artemis Accords — or maybe of the Sino-Russian’s International Lunar Research Station which would bring another form of appropriation, which could be just as interesting (43).
It therefore seems unavoidable that future space resources will be subject to some form of appropriation, which will not necessarily involve the application of a property regime as understood in civil law and common law legal systems (44). Indeed, such utilisation and appropriation could take a totally new form, outside the categories usually reserved to ownership and property rights.
It is conceivable that appropriation rights could be replaced by a transfer of rights over resources that are detached from any form of ownership, which could be developed through private agreements, and which would no doubt be highly imaginative (45).

A space sustainability regime pertaining to lunar infrastructuress

Mineral mining will necessarily be in connection with a human settlement on the Moon. The question of the ownership of human infrastructures will also be raised to allow such settlement, not necessarily regarding the land used for the infrastructures but mainly the transformation of the environment needed to create a sustainable Moon base (46).
Most and foremost, together with mining Moon’s minerals, such settlement will undoubtedly have a huge impact on the areas where such facilities will be installed.

The framework of any potential Moon settlement

The idea of space settlement predates Apollo and Luna missions, yet it remains questionable today. According to Schwartz, Wells-Jensen, Traphagan and Smith, the promise of a human brighter future led by space exploration remains mostly on faith (47).
Certainly, when sustainability of space activities is debated, it is mainly being referred to ecological and economic sustainability. However, the social aspect and political aspect of a «why?» settling on another celestial body must be kept in mind. Faith can be a driving force for humankind, but not necessarily for the greater good.
Notwithstanding the economic aspect of the sustainability of space settlement that we already discussed (48), and the socio-cultural aspect which would deserve a separate paper on its own (49), it appears that the current international law framework does not encompass the whole reality of future space missions.
For instance, while the space treaties concluded under the auspices of the United Nations tackled the issue of sovereignty in space for peaceful purpose (50), the rescue of astronauts (51), the liability regime in the outer space (52), and the obligation to register space objects (53), nothing was implemented to tackle ecological and sustainable space exploration; or, to be more precise, the Moon Agreement addressed some of these issues but was widely rejected, as we have already mentioned (54).
Indeed, the primary issues to tackle were to permit space exploration while mitigating technical risks and dealing with a delicate geopolitical context. At first, space agencies did not include non-technical risks as such as societal and ecological issues (55).
Nevertheless, even if a celestial body does not receive the same treatment as the Earth, due to the absence of biological activity, the preservation of its environment is worth discussing.

The dubious future of a sustainability regime for lunar settlement

As such, space environment sustainability enters the judicial debate for Earth’s orbits. For example, some authors are developing a framework to keep orbits clear from debris and too much activity for astronomy and future space missions (56).
However, keeping Earth’s orbits clean is directly linked to human activities in space, which means preserving outer space to future generations and for future missions. In the case of the Moon, what is to protect except for the Moon environment itself? It seems to us that the development of a regime to protect the lunar environment will necessarily involve protecting human activities on the Moon before protecting lunar moonscape and natural resources as themselves.
Thus, a protection of the Moon de jure remains highly compromised. It is once again on the question of appropriation that a renewed protection would be found.
For example, it would be possible to consider that private ownership is banned from lunar territories and resources, yet the use of these resources could be compliant to a common goal of sustainable activities on the Moon and shared benefit for all Nations (57).
Such regime would have nonetheless to emancipate itself from the cumbersome legacy of the Moon Agreement and its ill-famed Article 11, developing the concept of «common heritage of mankind» and res communis omnium regime (58).
Yet, the disavowal of the work that led to the Moon Agreement is detrimental regarding some of the great concepts that were tackled, such as the exploration use of the Moon for the benefit of all mankind (59), and its Article 7 which were intended to tackle the disruption of the existing balance of the Moon’s environment (60).
As written above, the Moon Agreement has been overwhelmingly rejected by the international community, and even more by space-faring nations. It would be illusory to believe that such disavowed regimes were to be replicated in the future, or at least not within the same forum, which the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), at least not in its current configuration.
For example, the regime of seabed resources on the high seas — based on international cooperation under the aegis of an international institution dedicated to the redistribution of wealth linked to this exploitation — may be a remedy to the dilemma of the appropriation of extra-atmospheric resources and their sustainable exploitation, both ecologically and economically.
Moreover, the idea of a res nulius regime would be no doubt be preferred over res communis omnium by space-faring nations, making possible an appropriation via a potential lex loci rei spatialis (as the well-known lex loci rei sitae concept) or a personal connecting factor.
If such legal regime were to be implemented, it seems that it would be through the unilateral commitment of space agencies (e.g. within the Artemis Accords and the International Lunar Research Station frameworks), or even by private companies themselves through the prism of corporate social responsibility compliance, even if it sounds like a pious desire (61).

Conclusion

We have seen that the concept of «sustainability» can be understood from both economic and environmental point of views, as these concepts are not inherently incompatible. Nevertheless, a sustainable outer space environment should deserve a special treatment in the international legal debate.
On the aspect of economic sustainability, the risks undertaken by space agencies and those undertaken by private companies must be in line with the potential benefits. Currently, Earth’s orbits econosphere remains beneficial even considering the risks. This remain to be proved for Moon mining and settlement operations.
The mere concepts of lunar mining and settlement are subject to the form of appropriation natural space resources can take. This question remains also unanswered for the time being, even if space agencies and private companies are taking the risk to build on their missions and business models on a potential appropriation, with no known legal regime of the corpus juris spatialis to be compliant with.
In our opinion, such regime would erect mainly from public-private contracts which would let freedom to contract parties to imagine a legal regime of their own, in the absence of a relevant legal framework, and binding themselves with their «own laws». It is not beyond the realms of possibility to consider that the future of space law pertaining to natural space resources will be conveyed by national private law regimes regarding contracts, coordinated by private international law mechanisms.
Indeed, as lunar activities progress ahead of any comprehensive international regulations on lunar sustainability, the coordination of national laws via private international law emerges as an urgent priority. This coordination is essential for understanding the rights of appropriation and the liability regimes that could arise from the exploitation and utilisation of extra-atmospheric assets and lunar structures. Without a harmonised legal framework, the absence of clear regulations risks creating conflicts and inefficiencies jeopardises both the equitable utilisation of lunar resources and the sustainable development of lunar settlements. Therefore, it is important to establish robust legal mechanisms to govern these activities, ensuring they align with international principles while promoting responsible and fair access to lunar resources for all nations.
Beyond the Outer Space Treaty of 1967, national laws indicate a trend towards recognising private appropriation of space resources, though they raise questions about consistency with its provisions and the need for a unified international approach. However, this paper did not delve into certain comparative law issues, such as the analogy between the constitutional notion of a state’s ‘people’ and the state itself—a comparison that becomes even more precarious when applied to the principle of non-appropriation and would deserve careful consideration.
In this evolving legal landscape, it becomes imperative to forge a consensus on the appropriation and sustainable use of lunar resources and settlement. Establishing clear international regulations and harmonising private international law mechanisms to coordinate these national laws will help mitigate potential disputes and claims, while ensuring that lunar activities benefit all humanity while preserving the lunar environment for future generations.
As we stand on the threshold of lunar mining and settlement, we face a critical moment that requires us to embrace the challenges of space exploration with both wonder and foresight. It is essential to craft sustainable legal frameworks that foster innovation while protecting celestial bodies, caring for and safeguarding the Moon and ensuring a future where humanity not only explores but thrives among the stars.

References

  1. Schwartz, J.S.J. et al. (2021) «What Do We Need to Ask Before Settling Space?», Journal of the British Interplanetary Society, 74, p. 2.
  2. Musk, E. (2018) «Making Life Multi-Planetary», New Space, 6(1), pp. 2–11.
  3. See for example Heldmann, J.L. et al. (2022) «Mission Architecture Using the SpaceX Starship Vehicle to Enable a Sustained Human Presence on Mars», New Space, 10(3), pp. 259–273; Cichan, T. et al. (2017) «Mars Base Camp: An Architecture for Sending Humans to Mars», New Space, 5(4), pp. 203–218.
  4. See for example Duke, M.B. (2006) «Development of the Moon», Reviews in Mineralogy and Geo- chemistry, 60(1), pp. 597–655.
  5. NASA (2020) The Artemis Accords Principles for cooperation in the civil exploration and use of the moon, mars, comets, and asteroids for peaceful purposes.
  6. United Nations (1967) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, RES 2222 (XXI).
  7. Zhao, W. and Wang, C. (2019) “China’s lunar and deep space exploration: touching the moon and exploring the universe”, National Science Review, 6(6), pp. 1274–1278.
  8. For more details, see McDougal, M.S. et al. (1963) “The Enjoyment and Acquisition of Resources in Outer Space”, University of Pennsylvania Law Review, 111(5), p. 521.
  9. Launius, R.D. (2000) “The historical dimension of space exploration: reflections and possibilities”, Space Policy, pp. 23-38.
  10. See for example Paxson, E.W. (1993) “Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development”, 14(3), pp. 487–517.
  11. Saint-Martin, A. (2021) “Un nouvel esprit du capital-risque spatial? Sur quelques tendances récentes du financement de l’industrie spatiale américaine”, Entreprises et histoire, n° 102(1), pp. 120–139.
  12. Corrado, L., Cropper, M. and Rao, A. (2023) “Space exploration and economic growth: New issues and horizons”, Proceedings of the National Academy of Sciences, 120(43).
  13. Friend, A. (2017) “System of Accounts for Global Entropy Production (SAGE-P): The Accounting in the Topological Domain Space (TDS) of the Econosphere, Sociosphere, and the Ecosphere”, Chap. 6, 99-137 in Shmelev, S. (ed.) (2017) Green Economy Reader: Lectures in Ecological Economics and Sustainability. Cham: Springer International Publishing (Studies in Ecological Economics).
  14. Baker, H.A. (1996) The Application of Emerging Principles of International Environmental Law to Human Activities in Outer Space, McGill University, p. 3.
  15. Taubenfeld, H.J. (1973) “International Environmental Law: Air and Outer Space”, Natural Resources Journal, 13(2), p. 315.
  16. Ibid.
  17. Ibid.
  18. Gast, P.W. (1972) “The chemical composition and structure of the moon”, The Moon, 5(1–2), p. 122.
  19. Crotts, A. (2011) “Water on The Moon, I. Historical Overview”, Astronomical Review, 6(7), p. 12.
  20. Lin, H. et al. (2022) “In situ detection of water on the Moon by the Chang”E-5 lander”, Science Advances, (8), p. 2.
  21. Chakraborty, T. et al. (2024) “On the reachability and genesis of water ice on the Moon”, ISPRS Journal of Photogrammetry and Remote Sensing, 211, pp. 392–405.
  22. Collins, D. (2008), “Efficient Allocation of Real Property Rights on the Planet Mars”, Boston University Journal of Science & Technology Law, 14, p. 208.
  23. See for example Landry, B. (2013) “A Tragedy of the Anticommons: The Economic Inefficiencies of Space Law”, Brooklyn Journal of International Law, 38(2), pp. 523–578; Joseph, C. and Wood, D. (2021) “Analysis of the Microgravity Research Ecosystem and Market Drivers of Accessibility”, New Space, 9(2), pp. 123–138.
  24. See generally Commons, J.R. (1925) “Law and Economics”, The Yale Law Journal, 34(4), pp. 371–382.
  25. Sandler, T. and Schulze, W. (1981) “The Economics of Outer Space”, Natural Resources Journal, 21(2), p. 371.
  26. Id., p. 381.
  27. See for example Ostrom V., Ostrom E., “A Behavioral Approach to the Study of Intergovernmental Re- lations”, The Annals of the American Academy of Political and Social Science, 359(1), pp. 137-146; Tepper, E. (2022) “The Big Bang of Space Governance: Towards Polycentric Governance of Space Activities”, NYU Journal of International Law and Politics, 54(3), p. 485 et seq.
  28. US Congress (2015) H.R. 2262 (RFS) – Spurring Private Aerospace Competitiveness and Entrepreneur- ship Act of 2015. U.S. Government Publishing Office; Duchy of Luxembourg (2017) Exploration And Use Of Space Resources Act. Official Gazette of the Duchy of Luxembourg; United Arab emirates, Federal Law No 12 of 2019 on the regulation of the space sector (2019) UAE Federal Law; Japan (2021) Space Resources Act, Kanpo¯.
  29. French Parliament (2008) Space Operations Act No. 2008-518. JORF No. 0129; Danish Parliament (2016) Outer Space Act (lov om aktiviteter i det ydre rum), Lovtidende.
  30. NASA et al. (2020) The Artemis Accords Principles for cooperation in the civil exploration and use of the moon, mars, comets, and asteroids for peaceful purposes.
  31. The mere idea of natural space resource appropriation and the use of capitalist mechanisms in the outer space deserve to be criticised. Importing a biased model while the outer space could be understood not only as a new frontier, but hope for the development of new models, can of course be seen as short-sighted. However, this paper is only intended to analyse private international law aspects of space resource appropriation (SRA) with making as few value judgements as possible about the mechanisms studied.
  32. Outer Space Treaty, Article I, para. 2.
  33. Hobe, S., Schmidt-Tedd, B. and Schrogl, K.-U. (2017) Cologne commentary on space law. Berliner Wissenschafts-Verlag, Berlin, p. 195. 36.
  34. Outer Space Treaty, op. cit., Article II.
  35. See in this regard Hobe, S., Schmidt-Tedd, B. and Schrogl, K.-U. (2017), op. cit.; Jakhu R. (2006) “Legal Issues Relating To the Global Public Interest in Outer Space,” 32 Journal of Space Law, 31, pp. 44- 46; Christol C. (1984) Article 2 of the 1967 Principles Treaty Revisited, IX Annals of Air and Space Law, 217, p. 236, quoting the Belgian representative to UN COPUOS who advanced that the non-appropriation principle covers both claims of sovereignty and “the creation of titles to property in private law”; Jakhu, R.S., Pelton, J.N. and Nyampong, Y.O.M. (2017) Space Mining and Its Regulation. Springer International Publishing.
  36. Gorove S. (1969) “Interpreting Article II of the Outer Space Treaty”, 37 Fordham L. Rev. 349, p. 351.
  37. United Nations (1979) Agreement Governing the Activities Of States On The Moon And Other Celestial Bodies, RES 34/68.
  38. Saudi Arabia withdrawn from the Moon Agreement 5th January 2020 in accordance with Article 20, see for that matter United Nation (2020) C.N.4. 2023. TREATIES-XXIV.2, Depositary Notification.
  39. Indeed, Article 11, para. 3 of the Moon Agreement states: Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.
  40. See supra footnote No. 28.
  41. NASA (2020) The Artemis Accords Principles for cooperation in the civil exploration and use of the moon, mars, comets, and asteroids for peaceful purposes, Section 10, para. 2.
  42. US President (2020) Executive Order on Encouraging International Support for the Recovery and Use of Space Resources.
  43. Malysheva, N. and Hurova, A. (2021) “New Frontiers of Sustainable Human’s Activities: Challenges for Legal Order of Space Mining Economy”, Advanced Space Law, 8.
  44. See for example Salter A.W. and Leeson P.T. (2014) “Celestial Anarchy”, Cato Journal, 34(3).
  45. Mishori, D. (2014) “Reclaiming Commons Rights: Resources, Public Ownership and the Rights of Future Generations”, The Law & Ethics of Human Rights, 8(2), pp. 335–366.
  46. Krichevsky, S. and Bagrov, A. (2019) “Moon Exploration: Legal Aspects”, Advanced Space Law, 4.
  47. Schwartz, J.S.J. et al. (2021) “What Do We Need to Ask Before Settling Space?”, Journal of the British Interplanetary Society, 74, pp. 2–9.
  48. See for more information Rebentisch, E. et al. (2005) “Using Stakeholder Value Analysis to Build Exploration Sustainability”, in 1st Space Exploration Conference: Continuing the Voyage of Discovery. 1st Space Exploration Conference: Continuing the Voyage of Discovery, Orlando, Florida: American Institute of Aeronautics and Astronautics.
  49. Schwartz, J.S.J. et al. (2021), op. cit.
  50. United Nations (1967) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, RES 2222(XXI).
  51. United Nations (1968) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, RES 2345(XXII).
  52. United Nations (1972) Convention on International Liability for Damage Caused by Space Objects, RES 2777(XXVI).
  53. United Nations (1976) Convention on Registration of Objects Launched into Outer Space, RES 3235(XXIX).
  54. United Nations (1979) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, RES 34/68.
  55. Vedda, J.A. (2008) “Challenges to the Sustainability of Space Exploration”, Astropolitics, 6(1), pp. 22–49.
  56. Lawrence, A. et al. (2022) “The case for space environmentalism”, Nature Astronomy, 6(4), pp. 428–435.
  57. Respecting the Article I, paragraph 1, of the Outer Space Treaty which states: “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”
  58. Moon Agreement (1979), Article 11, para. 1.
  59. Ibid., Article 4.
  60. Ibid. Article 7.
  61. See on this last point Sandhu, G. (2023) ‘You Manage What You Measure: Achieving Space Sustain- ability and Self-Regulation of the Outer Space Industry Through Environmental, Social, and Governance Corporate Disclosure’, New Space, 11(2), pp. 135–146.

Bibliography

• H. A. Baker. The Application of Emerging Principles of International Environmental Law to Human Activities in Outer Space. PhD thesis, McGill University, Montreal, Canada, 1996.
• T. Chakraborty, T. H. Syed, E. Heggy, D. Putrevu, and U. Dutta. On the reachability and genesis of water ice on the Moon. ISPRS Journal of Photogrammetry and Remote Sensing, 211:392–405, May 2024.
• T. Cichan, S. A. Bailey, T. Antonelli, S. D. Jolly, R. P. Chambers, B. Clark, and S. J. Ramm. Mars Base Camp: An Architecture for Sending Humans to Mars. New Space, 5(4):203–218, Dec. 2017.
• D. Collins. Efficient Allocation Of Real Property Rights On The Planet Mars. Boston University Journal of Science Technology Law, (14):201–219, 2008.
• J. R. Commons. Law and Economics. The Yale Law Journal, 34(4):371–382, Feb. 1925.
• L. Corrado, M. Cropper, and A. Rao. Space exploration and economic growth: New issues and horizons. Proceedings of the National Academy of Sciences, 120(43), Oct. 2023.
• C. Q. Cristol. Article 2 of the 1967 principles treaty revisited. Annals of Air and Space Law, 9:217–244, 1984.
• A. Crotts. Water on The Moon, I. Historical Overview. Astronomical Review, 6(7):4–20, Oct. 2011.
• M. B. Duke. Development of the Moon. Reviews in Mineralogy and Geochemistry, 60(1): 597–655, Jan. 2006.
• P. W. Gast. The chemical composition and structure of the moon. The Moon, 5(1-2): 121–148, 1972.
• S. Gorove. Interpreting Article II of the Outer Space Treaty. 37(3):349–354, 1969.
• J. L. Heldmann, M. M. Marinova, D. S. Lim, D. Wilson, P. Carrato, K. Kennedy, A. Es- beck, T. A. Colaprete, R. C. Elphic, J. Captain, K. Zacny, L. Stolov, B. Mellerowicz,
• J. Palmowski, A. M. Bramson, N. Putzig, G. Morgan, H. Sizemore, and J. Coyan. Mission Architecture Using the SpaceX Starship Vehicle to Enable a Sustained Human Presence on Mars. New Space, 10(3):259–273, Sept. 2022.
• S. Hobe, B. Schmidt-Tedd, and K.-U. Schrogl. Cologne commentary on space law. Berlin, berliner wissenschafts-verlag edition, 2017.
• R. Jakhu. Legal Issues Relating to the Global Public Interest in Outer Space. Journal of Space Law, 32:31, 2006.
• R. S. Jakhu, J. N. Pelton, and Y. O. M. Nyampong. Space Mining and Its Regulation. Springer International Publishing, Cham, 2017.
• C. Joseph and D. Wood. Analysis of the Microgravity Research Ecosystem and Market Drivers of Accessibility. New Space, 9(2):123–138, June 2021.
• S. Krichevsky and A. Bagrov. Moon Exploration: Legal Aspects. Advanced Space Law, 4, Dec. 2019.
• B. Landry. A Tragedy of the Anticommons: The Economic Inefficiencies of Space Law. Brooklyn Journal of International Law, 38(2):523–578, Mar. 2013.
• R. D. Launius. The historical dimension of space exploration: reflections and possibilities. Space Policy, pages 23–38, 2000.
• A. Lawrence, M. L. Rawls, M. Jah, A. Boley, F. Di Vruno, S. Garrington, M. Kramer,
• S. Lawler, J. Lowenthal, J. McDowell, and M. McCaughrean. The case for space environmentalism. Nature Astronomy, 6(4):428–435, Apr. 2022.
• H. Lin and et al. In situ detection of water on the Moon by the Chang’E-5 lander. Science Advances, (8), Jan. 2022.
• N. Malysheva and A. Hurova. New Frontiers of Sustainable Human’s Activities: Challenges for Legal Order of Space Mining Economy. Advanced Space Law, 8, 2021.
• M. S. McDougal, H. D. Lasswell, I. A. Vlasic, and J. C. Smith. The Enjoyment and Acquisition of Resources in Outer Space. University of Pennsylvania Law Review, 111 (5):521, Mar. 1963.
• D. Mishori. Reclaiming Commons Rights: Resources, Public Ownership and the Rights of Future Generations. The Law & Ethics of Human Rights, 8(2):335–366, Nov. 2014.
• E. Musk. Making Life Multi-Planetary. New Space, 6(1):2–11, Mar. 2018.
• V. Ostrom and E. Ostrom. A behavioral approach to the study of intergovernmental relations. The Annals of the American Academy of Political and Social Science, 359(1): 137–146, 1965.
• E. W. Paxson. Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development. 14(3):487–517, 1993.
• E. Rebentisch, E. Crawley, G. Loureiro, J. Dickmann, and S. Catanzaro. Using Stake- holder Value Analysis to Build Exploration Sustainability. In 1st Space Exploration Conference: Continuing the Voyage of Discovery, Orlando, Florida, Jan. 2005. Ameri- can Institute of Aeronautics and Astronautics.
• A. Saint-Martin. Un nouvel esprit du capital-risque spatial ? sur quelques tendances récentes du financement de l’industrie spatiale américaine. Entreprises et histoire, 102 (1):120–139, May 2021.
• A. W. Salter and P. T. Leeson. Celestial Anarchy. Cato Journal, 34(3), Jan. 2014.
• G. Sandhu. You manage what you measure: Achieving space sustainability and self- regulation of the outer space industry through environmental, social, and governance corporate disclosure. New Space, 11(2):135–146, 2023.
• T. Sandler and W. Schulze. The Economics of Outer Space. Natural Resources Journal, 21(2):371–393, Apr. 1981.
• J. S. J. Schwartz, S. Wells-Jensen, J. W. Traphagan, D. Weibel, and K. Smith. What Do We Need To Ask Before Settling Space? Journal of the British Interplanetary Society, 74:2–9, May 2021.
• S. Shmelev, editor. Green Economy Reader: Lectures in Ecological Economics and Sustainability, volume 6 of Studies in Ecological Economics. Springer International Publishing, Cham, 2017.
• H. J. Taubenfeld. International Environmental Law: Air and Outer Space. Natural Re- sources Journal, 13(2):315 – 326, 1973.
• J. A. Vedda. Challenges to the Sustainability of Space Exploration. Astropolitics, 6(1): 22–49, Mar. 2008.
• W. Zhao and C. Wang. China’s lunar and deep space exploration: touching the moon and exploring the universe. National Science Review, 6(6):1274–1278, Nov. 2019.