Who Owns the Sky? Property Rights, Resource Extraction, and the Ethics of Lunar and Asteroid Mining

Key Takeaways

• National laws in the United States and Luxembourg permit citizens to own resources extracted from space, but this has no consensus international backing.
• The ethical case for space resource property rights rests on contested philosophical ground involving Locke’s labor theory and its critics.
• The gap between legal permissibility and ethical legitimacy in space mining could generate geopolitical conflict as commercial extraction nears viability.

The Next Gold Rush Is Already Being Planned

The asteroid 16 Psyche is an M-type metallic asteroid in the main belt, roughly 279 kilometers in diameter. Scientists estimate it contains quantities of iron, nickel, and possibly precious metals that, if they could be extracted and transported to Earth markets, would dwarf the value of the entire current global economy by orders of magnitude. NASA’s Psyche mission, which launched in October 2023 and is en route to the asteroid, is a scientific exploration mission intended to determine whether Psyche is indeed a remnant core of an early planetary body. It is not a mining mission.

But the mining missions are being planned. AstroForge, a California-based startup, has secured funding and launch agreements for what it describes as the world’s first commercial asteroid mining mission. Planetary Resources, a precursor company backed by investors including Larry Page and Eric Schmidt before it was acquired by ConsenSys in 2018, spent years developing the technical foundations for asteroid prospecting. TransAstra is developing optical mining techniques for extracting water ice from near-Earth asteroids. Redwire and Made In Space have worked on in-space manufacturing from extracted materials.

The commercial drive to extract resources from the moon, asteroids, and eventually other solar system bodies is real, well-funded, and moving faster than the legal and ethical frameworks designed to govern it. Whether this activity is permissible under international law is contested. Whether it is ethically justified is even less settled.

The Legal Baseline: What the Treaties Say

The foundational document of international space law is the Outer Space Treaty of 1967, which has been ratified by 114 countries including all major space powers. Article II of the treaty states 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.”

The treaty prohibits national appropriation, but it does not explicitly address whether private companies can extract and own resources from celestial bodies. This ambiguity has become the central legal battleground of the emerging space mining sector.

The Moon Agreement of 1979 attempted to close that gap by designating the moon and its natural resources as the “common heritage of mankind” and requiring that exploitation of those resources be governed by an international regime to be established before extraction begins. The Moon Agreement has been ratified by only 18 states. The United States, Russia, China, and all other major space powers have declined to ratify it. The agreement’s opponents viewed it as an unacceptable constraint on national and commercial space activities.

The U.S. Commercial Space Launch Competitiveness Act of 2015, signed by President Obama, granted American citizens and companies the right to “engage in the commercial exploration and exploitation of space resources,” including the right to own, transport, use, and sell resources extracted from asteroids and the moon. The act included the caveat that it should not be interpreted to assert U.S. sovereignty over any celestial body.

Luxembourg’s Space Resources Law of 2017 similarly authorized commercial space resource extraction and established a licensing framework for Luxembourg-based companies. Luxembourg’s approach was explicitly designed to attract space mining companies to its jurisdiction, positioning the country as a European hub for the emerging sector.

The UAE Space Resources Law of 2020 followed a similar model. These national laws create a patchwork of permissive national frameworks without international consensus, a pattern that critics have compared to the early history of deep-sea mining, where unilateral national claims created geopolitical friction before an international regime was eventually negotiated.

Locke’s Labor Theory and Its Application to Space

The philosophical foundation most commonly invoked to justify private property rights in space resources is John Locke’s labor theory of property, articulated in his Second Treatise of Government. Locke argued that a person acquires a property right in a natural resource by mixing their labor with it, provided there is “enough and as good left over” for others. This “Lockean proviso” was intended to prevent unlimited private appropriation from leaving others without access to resources they need.

Applied to space resources, the labor theory supports the intuition that a company investing billions of dollars in a spacecraft that reaches an asteroid, extracts material, and processes it into usable form has acquired some legitimate claim to that material through its effort and investment. The extraction creates value that did not exist before. The company’s labor, broadly construed, has transformed a naturally occurring resource into something commercially valuable.

The Lockean proviso creates serious problems for unlimited space resource claims. The proviso requires that there be “enough and as good left over” for others. Whether this condition is satisfied by the vastness of the solar system, there are millions of asteroids and the moon contains significant quantities of various materials, or whether it is violated by the practical reality that only wealthy spacefaring nations and their commercial industries can access these resources, is genuinely contested.

Philosopher Robert Nozick, whose Anarchy, State, and Utopia offered the most influential libertarian reading of Locke, argued that the proviso is satisfied as long as the appropriation does not worsen the situation of others who cannot appropriate. On this reading, asteroid mining that leaves the broader pool of accessible resources effectively unchanged does not violate the proviso. But Nozick’s interpretation has been contested by egalitarian philosophers who argue that a world in which a small number of actors control access to vast space resources is one that has worsened the situation of those excluded, regardless of whether the raw quantity of unappropriated resources remains large.

The Common Heritage Principle and Why It Was Rejected

The alternative to the Lockean property rights framework is the “common heritage of mankind” principle, which holds that certain global resources, including the deep seabed and, under the Moon Agreement, the moon and its resources, are collectively owned by all of humanity and must be developed, if at all, through international regimes that distribute benefits equitably.

The common heritage principle was applied to deep seabed mining through the UN Convention on the Law of the Sea, which established the International Seabed Authority to regulate extraction and distribute revenues. Developed nations with the technical capacity for deep seabed mining lobbied hard against strong versions of the common heritage regime, and the regime that was eventually implemented in the 1994 Implementation Agreement was significantly weaker than the version developing nations had sought.

The Moon Agreement attempted a similar framework for space resources. Its failure to achieve major-power ratification reflects the same political dynamic: countries with the technical capacity for space resource extraction are unwilling to share the proceeds with those that lack that capacity. From a political standpoint, this is understandable. From an ethical standpoint, it represents a choice by the world’s most technologically capable nations to assert property rights in resources that belong, in principle, to all of humanity.

The Artemis Accords, which have been signed by more than 40 nations, include a provision stating that the extraction and utilization of space resources does not inherently constitute national appropriation, effectively adopting the U.S. legal framework’s logic at a multilateral level. The Accords do not require sharing of extracted resources and do not establish an international revenue-sharing mechanism. They do require transparency in resource extraction plans and encourage the use of safety zones around active operations, which is meaningful progress toward some kind of coordination, but they fall well short of the common heritage regime that the Moon Agreement envisioned.

Water Ice and the Lunar Economy

Lunar water ice represents the most immediately valuable and intensely contested space resource. Water can be electrolyzed into hydrogen and oxygen, the most efficient propellant combination for chemical rockets, making it the equivalent of a filling station for cislunar and deep space operations. Control over lunar water ice deposits could translate into decisive commercial and strategic advantages for whichever actors are first to extract and utilize them at scale.

NASA’s LCROSS mission confirmed the presence of water ice in permanently shadowed craters at the lunar south pole in 2009. India’s Chandrayaan-1 mission identified widespread surface water ice. China’s Chang’e program has targeted the lunar south pole, with the Chang’e 7 mission scheduled to survey the area in detail. NASA’s Artemis program has established the lunar south pole as its primary exploration target, in part because of the strategic significance of water ice deposits.

The ethical question this creates is whether the first actors to establish operations near the highest-concentration ice deposits will effectively control access to lunar water, and whether that level of control is compatible with the principle that the moon’s resources belong to all of humanity. NASA’s Lunar Gateway, a planned orbital outpost in lunar orbit, is designed to support sustainable human presence and science around the moon, but it does not resolve the property rights question for surface resource extraction.

Masten Space Systems, before its bankruptcy and asset acquisition by Astrobotic, had planned missions to the lunar south pole. Astrobotic and Intuitive Machines have both successfully landed or attempted landing on the moon under NASA’s Commercial Lunar Payload Services program. The commercial lunar economy is beginning, with or without resolved property rights.

The Developing World’s Stake

Countries that lack the technical capacity to conduct their own space resource extraction have a direct stake in how the international framework develops. If space resources are allocated on a first-come-first-served, labor-based property rights model, the proceeds from those resources will accrue almost exclusively to wealthy spacefaring nations and their commercial industries.

Brazil, South Africa, Nigeria, and other countries with nascent or developing space programs have expressed interest in a more inclusive international framework through bodies including UNOOSA and the African Space Agency. Their argument is not that they oppose commercial space resource extraction, but that they should have a meaningful share in the benefits that flow from resources whose legal status as common heritage was established in treaties that their governments signed.

The parallel with the UNCLOS deep seabed mining regime is imperfect but instructive. Even the weakened regime that was ultimately adopted for deep seabed mining includes provisions requiring some benefit sharing with developing nations. No equivalent provision exists in any currently operative space resource framework.

When Mining Meets Planetary Science

Asteroid and lunar mining are not only economic activities. They are activities that will alter the objects being mined in ways that cannot be reversed. Asteroids and lunar formations contain records of the early solar system, pristine geological archives that scientists have studied through meteorites for decades but that have never been directly sampled at scale.

JAXA’s Hayabusa2 mission returned samples from the asteroid Ryugu in December 2020, providing extraordinary insights into the organic chemistry of the early solar system. NASA’s OSIRIS-REx mission returned samples from the asteroid Bennu in September 2023. These missions collected grams of material. Commercial mining operations would extract tonnes or megatonnes.

The scientific community has not uniformly opposed commercial space resource extraction, but it has advocated for requirements that mining activities preserve scientifically significant sites on asteroids and the moon, similar to the heritage site protections for lunar landing locations included in the Artemis Accords. Whether commercial mining operations would respect such protections when they conflict with the location of the highest-yield deposits is an open question.

The Ethics of Extraction Without Consent

There is a philosophical question beneath all the legal and economic ones: who consented to this?

Space resources have been legally designated, however imperfectly and controversially, as the common heritage of mankind. Mankind, in that formulation, includes the eight billion people alive today and the billions more who will follow. The decision to extract and privatize those resources is being made by a small number of companies and governments without any mechanism for global consultation or consent.

This is not entirely unlike other consequential global decisions, energy systems, atmospheric modification, internet governance, that have been made by powerful actors without meaningful global participation. But the space resource case has a specific feature that makes the consent problem particularly acute: the resources being extracted are genuinely non-renewable on any human timescale, and the decisions being made now will determine what is available to future generations.

Whether that observation leads to paralysis or to a practical argument for establishing international governance before commercial extraction begins at scale is a judgment call that requires prioritizing some values over others. Getting the ethics right before the first major extraction mission arrives at its target is both more important and more possible than the current pace of governance development would suggest.

Summary

The ethics of space resource extraction turns on foundational questions about property rights, consent, and the obligations of the present to the future. National laws in the United States and Luxembourg have authorized commercial resource extraction based on a labor-theory property rights model that many countries and ethicists find incompatible with the common heritage principle established in international space law. The development of lunar water ice resources and near-Earth asteroid mining is proceeding faster than the international governance frameworks that could ensure equitable benefit sharing. The parallel with deep seabed mining offers a cautionary tale: the moment for shaping governance is before the extraction begins, not after the infrastructure is in place and the commercial interests have hardened.

Appendix: Top 10 Questions Answered in This Article

What does the Outer Space Treaty say about resource extraction?
The Outer Space Treaty of 1967 prohibits national appropriation of the moon and other celestial bodies but does not explicitly address whether private companies can extract and own resources from them. This ambiguity has become the central legal controversy in space mining governance.

What is the U.S. Commercial Space Launch Competitiveness Act of 2015?
The act grants American citizens and companies the right to engage in commercial exploration and exploitation of space resources, including the right to own, transport, and sell extracted materials. It includes a provision stating it should not be interpreted as asserting U.S. sovereignty over any celestial body, though critics argue the distinction is legally thin.

What is the common heritage of mankind principle and how does it apply to space?
The common heritage principle holds that certain global resources belong collectively to all of humanity and must be developed through international regimes that distribute benefits equitably. The Moon Agreement of 1979 applied this principle to the moon and its resources, but the agreement failed to achieve ratification by any major space power.

What is the Lockean labor theory and how is it used to justify space mining?
John Locke argued that a person acquires property rights in a natural resource by mixing their labor with it. Applied to space mining, this justifies a commercial company’s claim to extracted resources based on the investment and effort required to reach, extract, and process them. The Lockean proviso requiring “enough and as good” left for others is contested in the space context.

Why is lunar water ice strategically significant?
Water ice at the lunar south pole can be electrolyzed into hydrogen and oxygen for rocket propellant, making it equivalent to a fuel depot for deep space operations. Control over water ice deposits could provide decisive commercial and strategic advantages to the first actors to extract and utilize them at scale.

What are the Artemis Accords and what do they say about space resources?
The Artemis Accords are bilateral agreements initiated by the United States in 2020, signed by more than 40 countries, that include a provision stating space resource extraction does not inherently constitute national appropriation. They require transparency in extraction plans but do not establish revenue sharing with non-extracting nations.

How does deep seabed mining governance inform the space resources debate?
The International Seabed Authority, established under UNCLOS, regulates deep seabed mining and includes provisions for benefit sharing with developing nations. The space resources debate echoes the deep seabed mining history, where developed nations resisted the common heritage regime until a weakened version was adopted. The parallel suggests that governance frameworks shaped before extraction begins produce more equitable outcomes.

What scientific value could be lost through large-scale asteroid mining?
Asteroids contain pristine geological records of the early solar system. Commercial mining at the scale of tonnes or megatonnes could destroy or contaminate scientifically significant sites before they can be studied. JAXA’s Hayabusa2 and NASA’s OSIRIS-REx missions demonstrated the extraordinary scientific value of even tiny samples from asteroids.

What is AstroForge and what is it planning?
AstroForge is a California-based startup developing what it describes as the world’s first commercial asteroid mining mission. The company has secured funding and launch agreements for prospecting and extraction missions targeting metallic near-Earth asteroids for platinum-group metals.

What role do developing countries play in space resource governance debates?
Countries including Brazil, South Africa, and Nigeria have expressed support for a more inclusive international framework through bodies including UNOOSA and the African Space Agency. Their position is that they should share in the benefits of space resources legally designated as common heritage, even if they lack the technical capacity to conduct independent extraction missions.