April 2025 was a busy month for space.
Pop icon Katy Perry joined five other civilian women on a quick jaunt to the edge of space, making headlines. Meanwhile, another group of people at the United Nations was contemplating a critical issue for the future of space exploration: the discovery, extraction and utilization of natural resources on the Moon.
At the end of April, a dedicated Working Group of the United Nations Committee on the Peaceful Uses of Outer Space released a draft set of recommended principles for space resource activities. Essentially, these are rules to govern mining on the Moon, asteroids and elsewhere in space for elements that are rare here on Earth.
As a space lawyer and co-founder of For All Moonkind, a nonprofit dedicated to protecting human heritage in outer space, I know that the Moon could be the proving ground for humanity’s evolution into a species that lives and thrives on more than one planet. However, this new frontier raises complex legal questions.
Space, legally
Outer space – including the Moon – from a legal perspective, is a unique domain without direct terrestrial equivalent. It is not, like the high seas, the “common heritage of humankind,” nor is it an area, like Antarctica, where commercial mining is prohibited.
Instead, the 1967 Outer Space Treaty – signed by more than 115 nations, including China, Russia and the United States – establishes that the exploration and use of space are the “province of all humankind.” That means no country may claim territory in outer space, and all have the right to access all areas of the Moon and other celestial bodies freely.
The fact that, pursuant to Article II of the treaty, a country cannot claim territory in outer space, known as the nonappropriation principle, suggests to some that property ownership in space is forbidden.
Can this be true? If your grandchildren move to Mars, will they never own a home? How can a company protect its investment in a lunar mine if it must be freely accessible by all? What happens, as it inevitably will, when two rovers race to a particular area on the lunar surface known to host valuable water ice? Does the winner take all?
As it turns out, the Outer Space Treaty does offer some wiggle room. Article IX requires countries to show “due regard” for the corresponding interests of others. It is a legally vague standard, although the Permanent Court of Arbitration has suggested that due regard means simply paying attention to what’s reasonable under the circumstances.
First mover advantage – it’s a race
The treaty’s broad language encourages a race to the Moon. The first entity to any spot will have a unilateral opportunity to determine what’s legally “reasonable.” For example, creating an overly large buffer zone around equipment might be justified to mitigate potential damage from lunar dust.
On top of that, Article XII of the Outer Space Treaty assumes that there will be…
