Context on Recent Legal Treatments of Space Resource Utilisation
This week Chang’e 5 touched down on the surface of the Moon and began drilling into the surface. It has already collected samples of lunar material in the ascent stage and is on track to complete a sample return mission, bringing those tiny pieces of the Moon back to Earth. This mission and others are not photos in the pages of history like the Apollo missions, they are current events. Starting in 2020, lunar material extraction from the Moon will be a regular reality inviting a timely, if not urgent, consideration of the policy and coordination questions we need to agree on, in order to manage space resources for the benefit of all.
Since the Commercial Space Launch Competitiveness Act (“Space Act”) of 2015 , the United States has openly supported the interpretation of the principles of “freedom of use” and “non appropriation” from the Articles I and II of the 1967 Outer Space Treaty as allowing the extraction and commercialization of lunar resources, as long as the activity does not involve territorial appropriation. This position has triggered a number of reactions: some countries have followed this interpretation and published their own national laws allowing the commercialization of space resources, such as Luxembourg in 2017 or the UAE in 2020; while other countries and scholars have strongly and publicly disagreed with this interpretation. Whether the Space Act is ultimately deemed compliant with international space treaties or not, it has prompted debate and activated people all around the world to contemplate freedom of use and global commons management, with a goal of advancing the maturity of frameworks for managing space resources. Further, this position has brought to light important questions as to how commercialization could or should take place. Other questions involve the kinds of rights, protections and guard rails that should be established in order to best support cooperation, development, sustainability and good stewardship of the use of lunar regolith.
Open Lunar Foundation: New Ways Forward
Since our founding, Open Lunar has sought to carve out new approaches to the management and governance of the lunar environment for the benefit of all life. Open Lunar recently responded to NASA’s announcement to purchase regolith with policy recommendations focused on differentiating management methods across multiple categories of lunar resources. Water ice may be valued differently from common regolith, and may be relatively more scarce than other lunar materials. This is only one of many examples of distinct resources which may call for their own tailored management regimes.
Open Lunar also deeply committed to pursuing options which represent a “third way” — finding the win-wins between the viewpoints and positions of different actors and philosophies. We believe there are hybrid solutions to be created which accommodate the interests of scientific precision and control, human cultural heritage, common benefits to all, and commercial manipulation of the natural state of the Moon. Our efforts aim to ensure that the Moon, which we broadly endorse as a global commons, would not become yet another case study of the tragedy of the commons—supporting affirmative use, study, and even commercialization. Open Lunar Foundation holds the position that solutions to lunar policy issues are best when they are adaptive, plural, polycentric and allow for agentic participation of many stakeholder types. As you can read more about in our Strategy Briefing, Open Lunar Foundation aims for a sensitive understanding of the importance of enabling commercial innovation and developing economies in space, balanced against the concern that unfettered market development may risk repeating in space the historical and present day turmoil of resource management issues on our home planet.
Announcing “Breaking Ground” - A Lunar Resources Trust
As one prototype of a method of managing, owning and governing lunar resources, we will build a fully functioning ‘perpetual purpose trust’. This proposed type of Trust is a unique legal form, codesigned with us by specialists at Purpose Economy. This Trust is not presumed to be the universal solution to all resource management challenges, and in fact we would hope to see more organisations start entities like this one to deliberately experiment with practical interpretations of the Outer Space Treaty. We affirm and support the UN COPUOS and its role in aligning international consensus on space issues, however we also assert that new kinds of institutions at this middle layer — multilateral and yet not universal — are valuable and help to build practical momentum towards resolution of coordination challenges for space exploration. The Trust is also an entity which enables State and non State views to coalesce into new kinds of governance arrangements together.
Today we announce that Open Lunar Foundation is spearheading the creation of an independent lunar resource trust, called Breaking Ground. Breaking Ground will exist in perpetuity to pursue its purpose: “To steward and demonstrate formal and effective institutional management of lunar resources between different stakeholders.” The trust will be governed by a trust stewardship committee. This committee will be made up of individuals invited to represent the viewpoints of lunar science, resource industry, civil society and more, all of them working together towards the demonstration of a formal and effective institutional management of lunar resources between different stakeholders. The trust committee will maintain the integrity of the trust, and the trust will operationalize efforts including the purchasing of lunar regolith and stewarding those resources, facilitating participatory consultative processes to involve many stakeholders in determining, identifying and advocating for clear new resource management regimes as a result of these efforts.
The trust provides an opportunity to develop concrete resource management approaches that are cooperative, sustainable and aligned with the principles of the Outer Space Treaty. In order to do so, Breaking Ground aims to build on the precedent set by NASA and hold title to lunar resources. Of course, this regolith precedent raises numerous questions, and Open Lunar, Breaking Ground and many others do not have answers to these yet. This trust will explore and develop different approaches, surfacing different possible solution sets, through multi stakeholder conversations that will then be tested and used for broader discussion. The trust seeks to make multiple purchases which may each explore different management treatments. Finally, as Goethe once said: “Daring ideas are like chessmen moved forward. They may be beaten, but they may start a winning game”.