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64 Scientific American, July 2019

energy to solar panels. Astronauts could stage bases

here to extract the water sitting conveniently nearby at

the bottom of these craters, where permanently shad­

owed regions have allowed ice to accumulate.

Each pole contains roughly half a dozen of these

Peaks of Eternal Light, which are roughly a few hun­

dred meters across apiece. Given this relative scarci­

ty, it is easy to see why the principle of noninterfer­

ence could be a useful way for nations to claim terri­

tory. “They’re so small no one else can land on one

without risking damage to a spacecraft that’s already

there,” says Ian Crawford, a planetary scientist at

Birkbeck, University of London, who has studied

lunar resources. “The first companies or nations that

land on these peaks, regardless of the legal niceties,

will de facto have ownership.”

LEGAL LOOPHOLES

the outer space treaty was written half a century ago,

mainly by two countries—the U.S. and U.S.S.R.—that at

the time were the only ones that could even dream of

reaching the moon. Legal scholars have debated the

treaty’s implications ever since, and recent develop­

ments, such as the rise of commercial spaceflight, have

raised issues that were not on anyone’s radar back then.

In 2015 Congress sparked an international dis­

agreement by passing the U.S. Commercial Space

Launch Competitiveness Act, which specified that

although no one can claim property on a celestial

body, any material extracted from one is legally owned

by the entity that did the mining and can therefore be

sold for profit. Representatives from Russia, Brazil

and elsewhere subsequently made an uproar at a

March 2017 meeting of the United Nations Committee

on the Peaceful Uses of Outer Space (COPUOS), stat­

ing that off­world mining was a type of de facto appro­

priation and that a global consortium was needed to

regulate extraction operations.

Other countries have sided with the U.S.—includ­

ing nations such as Luxembourg, which would like to

be a major player in space­based resources—in its

more laissez­faire interpretation of the law. Chinese

delegates at COPUOS have mostly threaded the nee­

dle between the two sides, appearing to wait and see

which reading will eventually prevail. “International

law is made by the states collectively,” says Frans von

der Dunk, a law professor specializing in space at the

University of Nebraska–Lincoln. “If one says this is

legal and another says this requires an international

regime and licensing, then you have a big problem on

your hands.”

As things stand today, highly desirable areas of the

moon are likely to be acquired on a first­come­first­

served basis, rewarding the wealthy countries and

companies that can get there soon. Less affluent

nations could store up animosity toward those that

stake claims, stoking tensions much like in the situa­

tion now in the South China Sea, Crawford says. At the

moment there is no way to ensure that scientifically

interesting regions remain pristine. We should con­

front these conundrums before exploitation begins in

earnest, says Tony Milligan, an eth­

icist at King’s College London and

Elvis’s co­author. “Once you have a

regular presence on the moon, the

law begins to look very different,

and the colossal loopholes that you

can drive spaceships through sud­

denly stand out in much sharper

relief,” he observes.

To many, the Chinese space pro­

gram, with its political will and

technological capabilities, appears

to have a leg up on the competition.

Chinese engineers have suggested

that they can place a craft on the

surface of the moon with centime­

ter­scale accuracy. Their upcoming

set of Chang’e lunar missions

intends to bring back samples and

survey the poles in high detail. It might be in the best

interests of other countries to begin working on rules

that could rein in potential rivals, even if it means giv­

ing up some autonomy, von der Dunk says.

Some groups are already trying. A few years ago

Tanja Masson­Zwaan, a space law expert at Leiden

University in the Netherlands, co­founded the Hague

International Space Resources Governance Working

Group, an organization that has brought together gov­

ernment, industry and academia, among others, to

come up with recommendations for off­world mining.

In 2017 the group produced the building blocks for a

legal framework of principles that aim to balance the

interests of various stakeholders in accordance with

international law. Masson­Zwaan recommends estab­

lishing something akin to the International Telecom­

munication Union, an agency at the U.N. that allo­

cates satellite orbits and slices of the radio spectrum

among nations for moon mining.

The Outer Space Treaty was

written half a century ago, mainly

by two countries—the U.S. and

U.S.S.R.—that at the time were

the only ones that could even

dream of reaching the moon.