The question of whether the United Nations should form a Parliament to regulate space mining will likely yield different answers depending on where it is asked. Within the U.N., the answer might be yes, but outside that forum, perspectives can vary. Recently, Filijovic and Sharei suggested that the United States has a contentious interpretation of the Outer Space Treaty (OST) and that current legal frameworks for lunar exploitation are based on both the OST and the 1979 Moon Agreement (MA).
The Irrelevance of the Moon Agreement
From our standpoint, the U.S.’s contentious interpretation of the OST should not by itself prompt the creation of a U.N. parliament, nor should the MA be relied upon as a guide—especially since only a few countries signed it. The OST remains the only relevant legal framework, and delaying space mining for a decade while international lawyers seek consensus is not appealing to space startups. Such a lengthy legal process would likely be overtaken by events on the lunar South Pole. In my non-legal opinion, advocating for a U.N. parliament to debate the legalities of space mining would be doomed for four reasons:
- The U.N.’s first attempt to regulate space mining through the MA gained little traction.
- Space mining is not prohibited in the OST, making it permissible under the Lotus Principle.
- Domestic laws permitting space mining are emerging.
- The Artemis Accords, which address space mining, are being embraced.
Investment and Innovation Barriers
The MA isn’t relevant because it has only 17 signatories since 1979. Article 11 of the MA, which calls for an international regime to govern the exploitation of the Moon’s resources before space mining can occur, is a significant barrier for investment and stifles innovation in commercial space. This article also mentions “equitable sharing” of space mining benefits among all states, which could be seen as a precursor to a U.N.-sponsored international tax.
The Lotus Principle in International Law
While citing the Lotus Principle might seem weak, it remains solid in international law. This principle states that states can do what they want as long as it isn’t expressly prohibited. Since the OST does not explicitly forbid space mining, it should be allowed. Any space mining activity would still operate under the OST, the Liability Convention, and the Registration Convention. A space mining company would need to obtain approval or a license, have its space activity registered with the relevant state, and likely obtain insurance to cover unforeseen liabilities. Otherwise, most launch providers wouldn’t handle the payload.
Domestic Space Laws and the Artemis Accords
Furthermore, calls for a U.N. parliament are complicated by emerging domestic space laws in countries like Japan, Luxembourg, the United Arab Emirates, and the U.S. For instance, the U.S. Commercial Space Launch Competitiveness Act of 2015 states, “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained…”
Lastly, 43 states (including three more nations in the last two months) have signed the Artemis Accords, which permit space mining. The signatories affirm that the “extraction of space resources does not inherently constitute national appropriation” under the Outer Space Treaty. An apt analogy is that fishermen don’t own the ocean, but they can keep the fish they catch.
In conclusion, any U.N. parliament to regulate space mining would create significant regulatory uncertainty for the nascent industry. Most spacefaring states will likely ignore such calls since they have already decided to pursue lunar exploration and have generally accepted that extracting space resources is not appropriation under the Artemis Accords. Let the space mining begin.
Chris Tolton is CEO and co-founder of Orbital Mining Corporation (OMC), a lunar mining startup based at the Colorado School of Mines
