Despite the arrival of privately funded lunar mining companies, advancements in space resource legislation (such as the Commercial Space Launch Competitiveness Act of 2015) and lunar prospecting missions such as LUPEX, one legal hurdle remains that will likely impact the pace of investment in future lunar mining activities: property rights on a celestial body. This issue — specifically, the concept of exclusive administrative rights (the ability to manage and exclude others from a given area) — has been the subject of several SpaceNews op-eds.
Since ownership of celestial bodies is prohibited under Article 2 of the Outer Space Treaty (OST) of 1967, how can a U.S. lunar mining company claim exclusive access to a resource-rich crater near the lunar south pole in order to attract public or private investment? On Earth, exclusive access for miners is typically granted through tenure rights — either by land purchase, concession or defined-term lease. Yet under the OST, what would stop a Chinese or Russian competitor from exploiting the same water ice in a permanently shadowed region that the company has already invested in?
Short answer: nothing.
Although this presents a legal and administrative challenge, terrestrial mining regimes offer potential frameworks. In the U.S., mining claims on public lands fall under the Mining Act of 1872. In Mexico, mining companies must bid for a claim under the 2023 Mining Law. Each approach grants companies or individuals exclusive rights to publicly owned areas for the purposes of resource extraction.
This kind of “public property” mining claim process could be adapted to celestial bodies. But with that, there are new concerns and hazards to factor into area restrictions on the lunar surface, such as dust mitigation, shading, operational safety and surface infrastructure, such as power cables. Deadlines for resource development would have to accommodate the complexities of installation in a space environment. Additionally, internationally agreed-upon standards for geocoordinate formats and physical demarcation of lunar operating areas [preferably visible from orbit] would be essential.
These are challenges — but not insurmountable ones.
The real issue is determining what regulatory approach we should adopt to provide exclusivity for future off-world miners while remaining compliant with the OST. Should the U.S. unilaterally define “administrative rights”? A domestic framework might be accepted by close Artemis Accords partners but would likely face international criticism and may be viewed as a form of appropriation “by means of use or occupation,” forbidden by the OST.
In the near term, the de facto monopoly on commercial lunar deliveries by U.S. launch providers could offer temporary exclusivity. A mining company using a U.S. provider would benefit from FAA Office of Commercial Space Transportation launch license reviews, which could deny launches to nearby areas out of operational safety concerns. For example, if one company marks its landing site with beacons or navigational aids, the arrival of another lander could disturb or destroy those assets — potentially representing millions of dollars in losses. Apollo 12’s landing near Surveyor 3 provides a useful example with regolith sandblasting and covering the aforementioned robotic lander with regolith. However, once lunar access becomes globally competitive, this U.S.-based gatekeeping power will diminish, and the FAA will have no authority to prevent non-U.S. actors from accessing the same region.
At that point, several regulatory paths could emerge:
- Wait for the U.N. COPUOS Working Group on the Legal Aspects of Space Resource Activities, which is expected to publish a set of recommended principles by 2027. This would be the most international solution, but it may suffer from the same delays that have hampered the U.N. Convention on the Law of the Sea and the International Seabed Authority, which have been working on undersea mining policy for over four decades.
- Establish an Artemis Accords-based regime, wherein member countries develop a legal mechanism for managing lunar resource claims. This approach could gain legitimacy as more countries sign the Accords, but it would likely face resistance — and strategic circumvention — by non-signatories like China or Russia.
- Utilize the ITU (International Telecommunication Union), which already coordinates satellite frequency assignments and orbital slots.
In my opinion, there is little difference conceptually between an orbital slot in space and a mining area on the lunar surface. Both take up coordinates in space and create a coordination challenge. For those reasons, the ITU offers an existing solution that has already been accepted by all major space powers and has successfully managed a global commons for over five decades.
How would this work?
First, a country via its government authority would submit a mining claim request (via Advanced Publication Information or Coordination Submission) to the ITU several years before initial construction. The request would include positioning and communications information. This would then be published by the ITU to inform other nations.
Second, the same government authority would coordinate this mining claim and associated communications frequencies bilaterally with affected countries and obtain letters of no objection with those affected.
Third, once those bilateral discussions were completed, a formal notification would then go out to the ITU which would include final technical data on the mining area. The ITU would check for compliance and then the claim would be registered in the Master Registry. Of note, the mining claim would then have international recognition from a legal perspective.
The country would have a certain number of years, perhaps seven to bring the site into use. If the country doesn’t meet that deadline the mining claim may be cancelled, or must be renewed.
Perhaps further along in lunar development, it might be useful to break out mining claims into separate exploration and exploitation concessions whereby mining companies will need to seek ITU approval to operate in the vicinity of existing infrastructure. Entities seeking to mine will need to denote their methodology of exploitation (such as surface mining), assess the impact on the local environment, and then outline their plan for closure to include collection of equipment, disposal of contaminants and demobilization from the site if required.
To facilitate public–private investment in off-world mining, we propose that the FAA first address and clarify the issue of exclusive rights on celestial bodies, citing operational safety concerns. As demonstrated during Apollo 12’s mission next to Surveyor 3, landing in close proximity to existing infrastructure can pose significant risks from exhaust plumes and high-velocity debris. Once commercial lunar access becomes international, the U.S. government should adopt the ITU’s existing approach for managing orbital slots as a model for regulating future operations on celestial bodies. This strategy minimizes the need for new regulatory frameworks and increases the likelihood of international acceptance.
Chris Tolton is the CEO and co-founder of Orbital Mining Corporation.
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