Moon passes between the earth and the sun. Photo: Shutterstock

Humans have dreamed of traveling to the moon for as long as they’ve gazed at the heavens, and for just as long they seem to have been squabbling over property.

Small wonder, then, that with space travel now a reality and the existence of ice crystals recently confirmed on the moon—making the prospects for long-term lunar encampment more likely—some lawyers are already imagining the legal framework for settlement and activities such as mining on our closest natural satellite. As space activity in the 2000s has moved beyond the exclusive purview of governments to private enterprise, and from scientific exploration to commerce, questions of usage and private ownership rights become more important.

Timothy G. Nelson, Skadden.

Timothy G. Nelson is one lawyer already thinking about these matters. Nelson, a partner in the arbitration and litigation department at Skadden, Arps, Slate, Meagher & Flom in New York City, and a native Aussie, normally represents clients in terrestrial matters, such as cross-border and international disputes, often over issues involving energy or telecommunications in such countries as Russia, China and India. (He’s not to be confused with Tim F. Nelson, a Boston-based executive compensation and benefits counsel at the same firm.) Lately, though, he’s been thinking a lot more about similar issues on a celestial level.

Nelson answered some questions for us recently about how and why the issue of property rights on the moon might suddenly become a lot more relevant, and less pie in the sky. His answers have been edited for clarity and length.

Q: So what’s the importance of this recent discovery of water ice on the moon?

The point is that it could help sustain a more permanent presence on the moon, a life-support system. But why would you need to maintain a larger human presence on the moon? The moon itself is said to have some mineral or usable resources. The resource that is often bandied about is an isotope of Helium called Helium-3. Helium-3 might or might not be useful in energy contexts. Some say it could support nuclear fusion. The question becomes: Could you use the water deposits to enable a long-term presence on the moon that would, in turn, enable mining of that or other valuable compounds? And if you can build that kind of business plan, perhaps you have a basis for justifying the large-scale financing needed to go there. So the presence of water inches you toward a feasible business plan for doing business there.

Q: Are space mining rights a real issue now, or is this still in the realm of speculative fiction?

This may have seemed like an arcane issue but in 2015, Congress enacted quickly and without a lot of [discussion] the Space Resource Exploration and Utilization Act of 2015 [signed by President Barack Obama]. So exploration and mining in space was, in Congress’s view, a big enough deal to warrant hearings and legislation. The purpose of the bill was to encourage the development of asteroid resources, so defined. The definition of “asteroid resource” might not be broad enough to include the moon, but the bill does attempt to give security of title to operators who extract resources from asteroids.

If you assume that paradigm eventually gets transferred to the moon, the U.S. Congress has gone quite a long way to creating a legislative framework that would encourage resource exploration on the moon and, especially with water becoming more and more provable, I don’t think it would take much for Congress to tweak the legislation to apply to the moon. That bill, plus the potential proof of resources that could sustain a longer-term presence, may well move this issue beyond an abstract PowerPoint presentation to some kind of actual business plan for someone to go forward and develop an industry for the mining of products on the moon.

Q: Is anyone actually trying to do this?

Every now and again there have been announcements by entities that talk about asteroid mining and if they are looking at that, they would be looking at moon exploration.

[Editor’s note: Some of the companies involved in the planning stages for space exploration and mining include Planetary Resources Inc., an asteroid mining company based in Redmond, Washington, founded in 2009, according to the company’s website. Shackleton Energy Co. in Del Valle, Texas, was formed in 2007 to start building the technologies and equipment necessary to start mining on the moon. Shackleton hopes to extract fuel from the moon’s water ice, and iSpace of Japan is developing robots for a similar purpose. Moon Express has received private equity funding for moon exploration and potential mining operations. ]

Q: Does this mean there’s another space race developing for the right to mine on the moon?

It could well be. And if it is for mining rights, there needs to be a broader policy discussion about legal ownership and title. It is all very well for Congress to legislate domestically to protect U.S. operators. There might even be mirror-image legislation in China or Russia. But with space exploration these measures might not be enough to give security of title, from the point of view of an investor or someone contemplating to be an investor. The U.S. might see me as having clean title to things mined on the moon, but what will happen if I want to sell the material elsewhere? Can I trade it worldwide?

Q: You said the United Nations could have a role in this?

In 1979, there was signed by some countries a treaty called the “Moon Agreement,” which contemplated that mining would be subject to an international licensing authority. The treaty was drafted by a U.N. subcommittee affiliated with the Office for Outer Space Affairs (UNOOSA), which is the keeper of the treaty. But although there have been a bunch of successful space treaties, the Moon Agreement is not one of them. The treaty wasn’t ratified by the U.S. and only has a handful of signatories. The idea of having an international authority handing out licenses to mine on the moon was not to the taste of the United States, or indeed to many other countries. It raised some pretty deep philosophical disagreements in the middle of the Cold War. The treaty itself was a nonstarter, but the licensing idea does have a kernel of some legitimacy in the sense that if you are a national operator or an international operator with millions of dollars in a project, having security title is very important. Some sort of international recognition of the right to conduct these activities would be useful. Otherwise, I go to the moon, I find valuable minerals, but if the rest of the world won’t recognize my title, that’s a problem. Worse, my re-entry vehicle might land somewhere unfriendly (e.g., a desert in Central Asia) and my new hosts might take my haul and say “Thank you, but this ain’t yours.”

It’s not beyond the bounds of possibility that the U.N. may take this up again. Or the U.S. space policymakers might take it up. But I don’t think any one government is going to start negotiating this in a serious way unless people have reason to lobby the U.S. government [or another] to spur this on.

Q: What other legal issues may be involved before space mining is a reality?

Another policy issue that is a constant in all of this is ITAR,  which is the International Trafficking in Arms Regulation [in the United States, it is administered by the State Department]. This is a list of technology that can’t easily be shared with noncitizens. A lot of things you need in order to achieve space flight is technology that is on the list [of items], which complicates the task of bringing in foreign partners. It’s another illustration that, with space law, you are often coming across policy areas that are not wholly ready the creation of new industries, and you may have to adjust them. It continues to be an area where legal policy will have to shift if the commercial activity progresses beyond the abstract PowerPoint presentation into a business plan.