NASA geologist Harrison Schmitt was the last human to set foot on the Moon in 1972. Over half a century later, nation-States are still exploring ways to return to the lunar surface. In 2006, Schmitt published his seminal work Return to the Moon, which serves as a blueprint for the search for future energy sources for Earth. In his volume, he makes a compelling scientific case for returning to the Moon, which holds untapped resources worth billions of dollars—most notably, Helium-3 (3He).
Helium-3 has the potential to become one of the most important sources of clean energy. As a non-radioactive isotope, it could serve as an ideal fuel for fusion reactors. A 1988 NASA report on helium‑3 highlighted its potential for use in a nuclear fusion reactors. Scientists argue that ‘it offers several advantages compared to current nuclear power as an abundant, low-carbon energy and no nuclear waste technique’. While many of these ideas are still in the experimental phase, the challenge remains in harnessing and containing this energy to make it a viable source in the near future. Nonetheless, private companies have invested millions of dollars into this research. For example, Rob Meyerson and Gary Lai, former Blue Origin employees, have founded a company called Interlune, which aims to tap into the “lunar economy” by extracting helium-3 from the Moon’s surface.
Generating power through the fusion of deuterium and helium-3 could offer a more sustainable alternative to current energy extraction methods, helping to meet the demands of growing industrial economies. In light of sustainability goals and the COP commitments by States to go net zero in the coming two decades, lunar resource mining presents an ideal solution. Many developed, space-faring nations have invested resources and encouraged private companies to pursue this endeavour. The United States (US) and Russia are no longer the sole space hegemons recognising the vast potential of outer space, the Moon, and other celestial bodies. Smaller States, including Luxembourg, Japan, and India, have also developed policies to capitalise on space technologies. However, the strategic value of the Moon and the potential of lunar mining continue to attract significant interest from numerous sovereign States.
NASA’s Artemis 1 is the first in a series of space missions aimed at enabling human exploration of the Moon, marking the first return since the Apollo 17 mission in 1972, with future missions planned for Mars by 2028. It will also symbolise the US’s commitment to the sustainable exploration of natural resources in outer space. Similarly, the recent success of India’s Chandrayaan-3 mission, led by Indian Space Research Organisation (ISRO), has strengthened India’s position in lunar exploration. While these space initiatives are backed by billions of dollars, it is crucial to also consider the legal framework governing this domain.
The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, popularly known as the ‘Moon Agreement’ remains the specific law to regulate this domain. The last of the five United Nations space treaties has only 11 signatories and 16 parties. Saudi Arabia withdrew from the Treaty with effect from 5 January 2024. The Treaty needs further deliberations in terms of the content and context. Article 4 states that ‘the exploration and use of the moon shall be the province of all mankind’. Article 7 puts restrictions and mandates the responsible behaviour of States. Article 11 remains the most debated provision as it states that ‘the moon and its natural resources are the common heritage of mankind’.
Article 11 of the Moon Agreement, specifically, and Article 2 of the Outer Space Treaty, state that ‘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’. Interestingly, none of the major space-faring nations doing commercial activities in outer space have signed the Moon Agreement. In fact, several States have passed legislation with provisions that contradict the Moon Agreement, allowing them to capitalise on space resources. The first legislation to this effect was the United States Commercial Space Launch Competitiveness Act 2015 passed by Congress which states that US citizens are entitled to any asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the US.
The 2015 legislation further provides that ‘any asteroid resources obtained in outer space are the property of the entity that obtained such resources’. The US also issued Executive Order 13914 in April 2020, which explicitly asserts the rights to ‘engage in commercial exploration, recovery, and use of resources in outer space’ and rejected the Moon Agreement and its claim the moon is a ‘global commons’. This gave impetus to two start-ups, Planetary Resources and Deep Space Industries for commercial resource extraction. Two years after the 2015 US legislation, in 2017, Luxembourg enacted the Law on the Exploration and Use of Space Resources. Article 1 of the Law states ‘Space resources are capable of being owned’. In the following years, Japan and the UAE have also passed similar legislation. Recently, India which does not have a National Space Law unveiled its new Indian Space Policy in 2023. Interestingly, Clause 4(13), speaks the same language. It states, ‘Non-governmental entities (NGE) engage in the commercial recovery of an asteroid resource or a space resource. Any NGE engaged in such process shall be entitled to possess, own, transport, use, and sell any such asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of India’.
The geopolitical move that has further destabilised the fundamentals of the Moon Agreement is the Artemis Accords. Drafted by NASA and the US Department of State, the Accords are ‘grounded in the Outer Space Treaty of 1967’ and serve as a non-binding set of principles aimed at guiding civil space exploration and use in the 21st century. The Preamble of the Accords acknowledges ‘a collective interest in preserving outer space heritage’ and states that the ‘Signatories of these Accords, ushering in a new era of exploration and sharing a common spirit and the ambition that the next steps of humanity’s journey in space shall commit to the principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes’.
The Accords are an attempt to reinitiate the international dialogue on space governance, which has largely been dormant since the adoption of the 1979 Moon Agreement. No new international treaty on space governance has been concluded since the Moon Agreement. In this context, the growing support for the US led Artemis Accords has brought space governance back into the global conversation. As of October 2024, 45 countries have signed the Accords, which aim to establish a framework for cooperation in the civil exploration and peaceful use of outer space.
However, a significant concern is that the Artemis Accords were drafted by the US without broad international consultation, raising perceptions of unilateral global governance. As consensus around the principles of the Artemis Accords builds, the coming years may see more States enacting legislation that favours the commercial extraction of space resources.
On a positive note, these policies are strengthening the space sector, positioning it to become a trillion-dollar economy. NASA has awarded contracts to four private companies, namely, Lunar Outpost of Golden, Colorado; Masten Space Systems of Mojave, California; ispace Europe of Luxembourg; and ispace Japan of Tokyo, to collect lunar samples and sell them to NASA. Meanwhile, Russia and China vehemently opposed the Artemis Accords and have agreed to collaborate with each other on lunar missions. China has raised concerns about the concept of “safety zones” outlines in Section 11 of the Accords, while Russia has criticised the Accords for being too “American-centric”. Critics have argued that the Artemis Accords represent an attempt by the US to establish the principles of the Accords as customary norms.
The Accords are now taking shape as a new Washington consensus on space governance. While many of these ambitious national legislations and the emerging Artemis Accords consensus may seem progressive in terms of commercialising space capabilities, such State practices risk undermining the rule of law and the international legal principles enshrined in the Moon Agreement. The future of lunar mining will likely be shaped by the gradual erosion of the Moon Agreement’s relevance.
Adithya Variath is an Elizabeth Moir Scholar at the Oxford India Centre for Sustainable Development, pursuing an MSc in Global Governance and Diplomacy at the Oxford Department of International Development, University of Oxford.