Space Mining Legal Frameworks, International Law Concerns

---

Summary

• The push by the U.S. government to promote space‑mining ventures raises significant concerns, including practical feasibility issues, environmental risks, potential violations of international law, and the possibility of armed conflict.
• These risks are intensified by financial conflicts of interest involving a small group of wealthy individuals whose commercial ambitions may drive wasteful public subsidies with uncertain returns.
• Because space mining may eventually become economically inevitable, the Article argues that the responsible path forward is to pursue multinational regulatory agreements rather than rely on existing international law to prevent harmful or destabilizing outcomes.

Parilov/Shutterstock.com

Jump to:

---

---

Abstract

The Trump Administration and U.S. Congress are promoting new ventures to extract valuable minerals from outer space. This Article does not dismiss the idea out of hand, but explores reasons for caution, including practical problems with space mining, its environmental impact, the likelihood that the United States could violate international law, and the risk of armed conflict. These problems are exacerbated by financial conflicts of interest in our government with a handful of billionaires, who have a financial interest in space mining work. The promotion of their agenda could involve wasteful government spending on subsidies for private ventures, with a very uncertain return. Space mining, if it becomes economically feasible, may be inevitable, and this means that it is important to work toward multinational agreements to regulate it rather than assume that enforceable principles of international law will prohibit it.

---

---

---

---

I. Introduction

2025 brought a new push in the Trump Administration and U.S. Congress for the extraction of valuable minerals from surfaces in outer space. The concept of space mining has been around for years, but the impetus is accelerating with the growth of private space exploration and the influence of Elon Musk, Jeff Bezos, and other billionaires interested in space mining.

Musk’s company SpaceX is forming partnerships with asteroid-mining companies. In February 2025, Space.com reported:

A U.S. asteroid-mining company has announced the target space rock for its upcoming test mission.

California-based AstroForge has identified asteroid 2022 OB5 as the destination for its Mission 2 spacecraft, named Odin, which is set to launch next month, SpaceNews reports. The Odin spacecraft will be flying as a secondary payload aboard a SpaceX Falcon 9 rocket, which will send Intuitive Machines’ IM-2 lander toward the moon.
That mission failed, but there are more to come. Six years ago in 2020, Musk’s likelihood of success in space mining was serious enough that some financial experts believed he would increase gold supply and drive down the price of gold and other precious metals.

Nonetheless, serious questions arise as to whether space mining is practically and economically feasible, whether space mining is compatible with international law, and whether disputes between nations or space mining companies from different countries could lead to armed conflict in space. Additional issues of concern to the U.S. Government are whether private companies or public funds should pay for space mining exploratory missions, who should reap the benefits, and whether industry leaders like Musk, who have a financial interest in these missions, should, through federal employment, participate in forming government space mining policy. There are also environmental concerns with space mining. These and other questions are addressed in this Article.

With respect to the legal status of space mining, one approach would be to double down on the view that existing international law, namely the 1967 Outer Space Treaty discussed later in this Article, prohibits it. But such treaties can be reinterpreted or even ignored, and many countries with advanced space technology now interpret international law to allow space mining in some circumstances. This means that space mining, if it becomes economically feasible, is probably inevitable. Accepting this outcome, it may be better to work toward multinational agreements that regulate space mining now rather than assume that enforceable principles of international law will prohibit it. Ideally, multinational space mining agreements will be negotiated before the world knows which countries and private interests have achieved viable and lucrative space mining claims, because when accessible and potentially valuable space mining sites become known, negotiations could be more difficult.

II. Is Space Mining Feasible?

Mining precious metals, including copper, nickel, and platinum, is important to the U.S. economy, and American national security may depend on access to these minerals. But mining these minerals here on Earth is costly; for example, sulfide mining near large waterways, such as the Boundary Waters in Northern Minnesota, can have significant environmental impacts. Space mining is an alternative that could increase supply of precious metals without harmful environmental impacts on Earth and, if successful, could yield minerals worth billions, even trillions, of dollars.

Substantial expenditures now will be required to realize uncertain benefits later. Space travel is expensive, and identifying mineral-rich asteroids that can easily be mined is a challenge. Once minerals are found, extracting them, separating waste, and returning the minerals to Earth is another challenge.

The private space mining startup company AstroForge lost its Mission 1 and Mission 2 spacecraft carrying mining technology, but AstroForge is planning a $55 million Mission 3 on Intuitive Machines’s rideshare in 2026. NASA missions to collect samples from asteroids have been more successful but have not specifically focused on identifying useful minerals. NASA launched the Origins, Spectral Interpretation, Resource Identification, Security-Regolith Explorer (OSIRIS-REx), which dropped off a capsule with material from asteroid Bennu in 2023. The mission vehicle remained in space (renamed OSIRIS-APEX) and was sent to explore asteroid Apophis in 2029.

Conditions for space mining are not ideal. The Moon, for example, has long been thought of as a potential source of valuable minerals, but extreme temperatures and cosmic rays could interfere with mining operations.

In sum, space mining is highly speculative and will require substantial upfront investment with uncertain expectation of return. Attracting more private sector investors may be difficult unless governments can be persuaded to absorb some of the costs, potentially by assisting with specific missions, funding research and development of space mining equipment, or reorienting national space programs toward resource extraction as opposed to more traditional objectives such as space exploration.

III. What are the Environmental Risks of Space Mining?

Environmental risks are not eliminated by shifting mining from Earth to outer space. The environmental risks are of a different kind, but are still substantial. As with mining here on Earth and other resource extraction, the environmental costs of space mining are externalities usually not factored into the profits and losses of private actors, and environmental regulation may or may not be effective in mitigating these externalities.

Large-scale surface mining could alter the landscapes of the Moon and asteroids, destroying geological formations that, if left intact, could reveal the early history of the solar system. Mining and processing could cause hazardous spills or waste, contaminating the regolith (the layer of unconsolidated surface material covering solid rock) of the Moon and other bodies. Asteroids may hold compounds which could be released through mining, and NASA has found that the fine, abrasive dust found on the Moon and asteroids could interfere with equipment, obscure visibility, and create health hazards for astronauts. International guidelines are designed to prevent the contamination of celestial bodies with Earth microbes, but space mining could make it difficult to enforce these guidelines, which would risk compromising the scientific integrity of bodies in outer space.

Collisions in space could contribute to space debris, creating the so-called “Kessler syndrome,” a cascading effect where collisions create more debris, rendering certain orbits unusable.

Closer to Earth, debris from space mining could create hazards for other space travel and could potentially fall back to Earth. Rocket launches and satellite re-entries could further deplete the atmosphere. Re-entry of rockets into the atmosphere can release toxic materials and chemical byproducts, including nitrogen oxides, contributing to global warming. Frequent rocket launches to transport equipment and return materials will emit black carbon, carbon dioxide, and nitrogen oxides into the upper atmosphere, contributing to climate change and depleting the ozone layer.

IV. Is Space Mining Compatible with International Law?

Article II of the 1967 Outer Space Treaty says that “[o]uter 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.” This language is open to interpretation. Space mining proponents argue that resource extraction does not constitute “national appropriation” and is therefore not prohibited, especially if such extraction is carried out by corporate entities rather than nation-states. This argument weakens considerably if extracting minerals requires “use or occupation” of a particular celestial body for any significant period, and even more so if nation-states take steps to protect space mining claims belonging to corporate entities against encroachment from other nations. This is a likely occurrence if valuable minerals are discovered on a celestial body by a commercial mission or by a nation-state that has incurred considerable expense trying to find them. A broader interpretation of Article II addresses this problem by assuming that resource extraction in space is national appropriation and is therefore prohibited.

The 1979 “Moon Agreement” was adopted by the United Nations General Assembly in its Resolution 34/68 of December 5, 1979. The Agreement reaffirms the Outer Space Treaty as applied to the Moon and provides that:

1. The moon and its natural resources are the common heritage of mankind . . . . . . . .
2. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. . . . .
3. States Parties to this Agreement hereby undertake to establish an international régime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. The United States, China, and Russia have not ratified the Moon Agreement; India is a signatory.

The 2020 Artemis Accords go in a different direction. The Accords were originally signed by the United States and seven other countries (Australia, Canada, Italy, Japan, Luxembourg, the United Kingdom, and the United Arab Emirates) but have now been adopted by over sixty countries. The Artemis Accords interpret the Outer Space Treaty to permit extraction of resources in space. Section 10 of the Accords, “Space Resources,” provides:

1. The Signatories note that the utilization of space resources can benefit humankind by providing critical support for safe and sustainable operations.

2. The Signatories emphasize that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.

3. The Signatories commit to informing the Secretary-General of the United Nations as well as the public and the international scientific community of their space resource extraction activities in accordance with the Outer Space Treaty.

4. The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resources, including through ongoing efforts at the COPUOS.
   The Artemis Accords thus promote resource acquisition and use in space. The problem is that some signatories to the Outer Space Treaty are not parties to the Accords. Two U.N. Security Council members, Russia and China, are parties to the Treaty but are not parties to the Artemis Accords.

The United States, and some other countries, such as Luxembourg, have passed laws recognizing private ownership of minerals and other resources extracted from space. The 2015 U.S. Commercial Space Launch Competitiveness Act gives private companies rights over resources from space. The United States’ recognition of private ownership of space resources, however, is arguably an act of sovereignty over outer space, violating the Outer Space Treaty.

Apart from the international law issues, there are public policy concerns if the wealthiest countries and extremely wealthy individuals, with the support of national governments, further increase global inequality by being the first to claim valuable minerals and other resources in outer space.

V. Could Space Mining Lead to Armed Conflict in Space?

Finding an asteroid, a place on the Moon, or other surface with valuable minerals will be difficult and expensive. A lot of upfront investment will be needed for exploration of mining surfaces before surfaces rich in minerals are found. Once minerals are found, other private parties and nations may want to mine in the same locations, but the nations that got there first may resist. Regardless of what the Outer Space Treaty says, by prohibiting “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” an original explorer may view himself or herself as a legitimate stake claimer and others as claim jumpers. There might follow an appeal to a national government for protection of a claim and conflict could ensue.

As discussed above, there is no clear ownership interest under international law, and the Outer Space Treaty implies that there is no such thing as an owner of a mining stake in outer space. Other nations and corporate entities presumably would have equal rights to mine the same asteroid, lunar surface, or other surface in outer space, with no preference for the nation or commercial enterprise that discovered retrievable minerals there first. The rights of the first arrival at a space mining site at most would be limited to the right not to have its operations interfered with by another, but there is no international consensus on what type of interference would be impermissible.

The Artemis Accords, in Section 11, “Deconfliction of Space Activities,” reaffirm the signatories’ agreement not to interfere with each other’s use of space:

1. The Signatories commit to seek to refrain from any intentional actions that may create harmful interference with each other’s use of outer space in their activities under these Accords.

2. The Signatories commit to provide each other with necessary information regarding the location and nature of space-based activities under these Accords if a Signatory has reason to believe that the other Signatories’ activities may result in harmful interference with or pose a safety hazard to its space-based activities.

3. The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices, criteria, and rules applicable to the definition and determination of safety zones and harmful interference.

4. In order to implement their obligations under the Outer Space Treaty, the Signatories intend to provide notification of their activities and commit to coordinating with any relevant actor to avoid harmful interference. The area wherein this notification and coordination will be implemented to avoid harmful interference is referred to as a ‘safety zone’. A safety zone should be the area in which nominal operations of a relevant activity or an anomalous event could reasonably cause harmful interference.
   The Artemis Accord signatories also pledged to observe certain principles related to these “safety zones,” including reasonable size and scope of these safety zones which are supposed to “be temporary, ending when the relevant operation ceases,” and that “[t]he Signatories should promptly notify each other as well as the Secretary-General of the United Nations of the establishment, alteration, or end of any safety zone, consistent with Article XI of the Outer Space Treaty.”

Once again, China and Russia are not signatories to the Artemis Accords. They have not agreed to abstain from “interference” with another country’s operations in a safety zone, and the signatories of the Artemis Accords, including the United States, have not agreed to avoid interference with operations by China, Russia, or another country not party to the Artemis Accords.

This uncertainty about the underlying law governing space mining claims, compounded by the fact that there is no means to enforce an agreed-upon law even if there was one, means that if valuable minerals are discovered on an asteroid or other surface in space, there could be a scramble among private companies and countries to retrieve accessible minerals on that surface, with little or no respect for declared safety zones of other countries.

Several countries, including the United States, Russia, and China, are investing heavily in military capacity in space. For example, on April 4, 2025, the United States Space Systems Command announced that it had awarded three National Security Space Launch Phase 3 Lane 2 Firm Fixed-Price, Indefinite-Delivery Requirements contracts and that “[a]nticipated values for these contracts are $5,923,580,297 for SpaceX, $5,366,439,406 for United Launch Services, and $2,386,234,812 for Blue Origin.” Space X is controlled by Elon Musk, United Launch Services is a joint venture of Lockheed Martin and Boeing, and Blue Origin is controlled by Jeff Bezos. The total U.S. Space Force budget for 2025 was approximately $28.8 billion, and Chief of Space Operations General B. Chance Saltzman has recommended the Trump Administration increase Space Force spending by thirteen to eighteen percent annually.

Combine this escalation of spending on military capacity in space with the vast amount of wealth believed to be retrievable with space mining, and the world confronts the real possibility of armed conflict over mining stakes—a “Star Wars” equivalent to the claim jumping and gun battles over mining claims in the Old West. Military conflict over space mining claims likely will not ensue until retrievable minerals are discovered somewhere, but such conflict could escalate quickly and reverberate back on Earth, leading to a major war.

Making matters worse, in several countries, including the United States, the decision to go to war can be made by one person alone—the head of state—with little to no regard for international law. The constitutional provision that Congress declares war has been ignored many times, and the War Powers Act provision requiring the President to consult Congress about military action whenever possible has been ignored as well. President Trump’s decision in 2025 to bomb nuclear sites in Iran and to attack Iran again, as well as Venezuela in 2026, are recent examples of how quickly, covertly, and unilaterally decisions about warfare can be made, whether or not they conform to domestic law or international law. Combine expansive war powers with the extensive political influence of billionaires who fund space mining ventures, and it is not inconceivable that, if a mining claim of an influential person or enterprise were threatened by an alleged “claim jumper” from a foreign nation, a U.S. president or some other world leader would take military action that, in turn, could ignite a full-fledged war.

VI. Should the Government Invest in Space Mining?

The U.S. Government is already investing significant resources not only in space exploration but also in extracting resources from space.

For example, NASA’s Artemis mission program will explore the Moon, with the goal of establishing a long-term human presence on the Moon and preparing for future missions to Mars. The uncrewed mission Artemis I launched in 2022, and Artemis II launched in April 2026, carrying four astronauts on a ten-day trip around the Moon. As NASA itself says on its website:

[T]he farther humans go into deep space, the more important it will be to generate products with local materials, a practice called in-situ resource utilization (ISRU).

NASA’s Lunar Surface Innovation Initiative will develop and demonstrate technologies to use the Moon’s resources to produce water, fuel, and other supplies as well as capabilities to excavate and construct structures on the Moon.
And again elsewhere: “Collecting, processing, storing, and using materials found and/or manufactured on the lunar surface—such as water ice to convert to breathable oxygen or metal to use for building infrastructure—are key components for successful long-duration exploration missions on the Moon and Mars.”

In 2020, NASA awarded contracts to four companies for the collection of lunar resources, principally lunar dust (regolith). These contracts for lunar regolith collection were awarded to:

• Lunar Outpost (Golden, Colorado): Bid $1 to collect samples from the Moon’s South Pole, and received an initial payment of 10 cents.
• ispace Japan (Tokyo): Bid $5,000 for collection in the Lacus Somniorum area.
• ispace Europe (Luxembourg): Bid $5,000 for collection at the South Pole.
• Masten Space Systems (Mojave, California): Bid $15,000 for collection at the South Pole, but the contract was cancelled after Masten filed for bankruptcy in 2022. Other private companies are engaged in space mining projects that, even without direct government contracts, will benefit from coordination with NASA and perhaps other federal agencies such as the Department of Defense. AstroForge has launched several missions and is focused on a first mineral retrieval mission from space. Asteroid Mining Corporation focuses on mining robotics and developing technologies for asteroid mining. TransAstra uses optical mining, a technology that uses highly concentrated sunlight to extract water and to excavate asteroid materials. Moon Express has expressed interest in mining the Moon.

Apart from expenditures on national defense, which may someday be deployed to defend space mining claims, should the government pay for space mining, or should an investment that is so speculative be left to private enterprise? If costs are shared between government and private enterprise, who should reap the rewards? Who should pay to offset the environmental impact of rocket launches and pollution of space with debris from mining operations?

A space mining project funded by the government, or that is coordinated with the U.S. space program, presumably should return profits to taxpayers. A space mining project funded by private enterprise should return profits to the owners of the enterprise. A space mining project funded both by the government and by private enterprise should distribute costs, risks, and returns equitably between taxpayers and private companies that pay for it. Environmental costs of space mining presumably should be absorbed by those who participate in the profits.

Public-private partnerships for space exploration, and perhaps space mining, could be productive. But there are caveats. First, the aim of government is fundamentally different from that of a for-profit corporation. Government exists to serve a country’s people. For-profit companies, by contrast, focus primarily on profits, although some business leaders are also aware of their fiduciary obligations to the public. Because of the fundamentally different objectives in the private and public sectors, some approaches from business will work in government, and others will not. Second, the risk of capture of government regulators by business interests is particularly acute in an industry sector such as space mining, where a few very wealthy and powerful people are interested, and the social impact (positive and negative) is so remote that most of the public is disengaged from the decision-making process.

Because of both international law and environmental concerns, space mining should be a regulated industry. National governments should be involved and preferably coordinate with each other in regulating space mining to mitigate environmental impact and reduce the risk of hostilities and military confrontation in space. But once again, given the enormous political influence of corporations and billionaires who fund space mining ventures, there is reason to doubt whether there will be effective regulation of space mining. Alternatively, a “gold rush” in space could quickly evolve into an outer space version of the gun battles and political corruption that came with the rise of mining in the American West. The international aspect of the problem, and the need for collective action and cooperation among nations, make it even more difficult to achieve sensible regulation of space mining.

VII. Could Financial Conflicts of Interest Influence Government Policy on Space Mining?

Negotiations between the government and space mining companies should be at arm’s length and free of financial conflicts of interest. Government regulation of space mining also should be free of conflicts of interest.

Officers in the U.S. Government—except for the President, the Vice President, and Members of Congress—are prohibited from participating in government matters that affect their financial interests. This means that unelected federal officers or employees who have a financial interest in space mining ventures may not participate in formulating government policy toward space mining.

First, the fact that this statute does not apply to the President, Vice President, and Members of Congress is an enormous loophole. Space mining could all too easily follow the example of cryptocurrency, where Congress passed bills in 2025 regulating the industry while the President, charged with enforcing that regulation, held an enormous stake in the same industry.

For other federal officers and employees, the law is stricter. The federal conflict of interest statute applies to matters that involve specific parties, such as contracts with NASA or the Department of Defense, as well as matters focused on the interests of a discrete and identifiable class of persons, such as treaties, executive agreements, statutes, or regulations affecting space mining. A particular matter has a direct effect on a financial interest of the federal employee, requiring recusal if there is a close causal link between a government decision or action in the matter and an expected effect of the matter on the financial interest.

Thus, a federal employee may not advise NASA or the White House on NASA’s budget for space mining if the employee owns stock in a company, such as SpaceX, that will financially benefit from NASA spending money on space mining. A federal employee also may not advise NASA or the White House on regulatory matters pertaining to space mining if the employee owns stock in a company that will be affected financially by regulation of space mining.

Some federal employees are part-time special government employees (SGEs) who work with or without compensation. The financial conflict of interest statute applies to SGEs as well as full-time officers and employees with very narrow exceptions.

Elon Musk was a federal employee for the first half of 2025 before he had a falling out with President Trump. Although Musk might not work in the Trump Administration again, his case is illustrative of the problem with enforcing conflict-of-interest laws. Other billionaires investing in space mining, including Jeff Bezos, are close to the President and could, in the future, be in a similar situation where they could influence government policy from the inside while making money from space mining on the outside.

Whether Musk or anyone else is a full-time federal employee or a part-time SGE is irrelevant. A federal employee may not participate in a government matter that affects his financial interest. Musk has a controlling interest in SpaceX, which is poised to lead the way in space mining, potentially earning Musk billions of dollars if projections about the value of minerals in space are correct. He has every right to pursue this as a private venture, but when he was a federal employee, even a part-time SGE, he could not legally advise the Government on space mining or make decisions for Government agencies that affect space mining. Like countless other successful business leaders before him who entered public service, he was required to either divest his financial interests or recuse himself from government matters that affect his financial interests.

Musk’s companies are also government contractors; in fact, his companies have about $22 billion in government contracts, $15 billion with NASA and billions more with the Department of Defense. If he were to rejoin the government and participate in government matters affecting these contracts, he would stand on both sides of transactions potentially worth billions of dollars, and likely would violate the conflict-of-interest statute. Other billionaires investing in space mining, including Jeff Bezos, have similar government contracts and stand to make billions more from the U.S. space program. If they too someday join the government, they will be subject to the conflict-of-interest laws that were binding on Musk in 2025.

Enforcement of conflict-of-interest laws turns in part on transparency. At the upper echelons of government, federal officers must file a public financial disclosure report of their assets, liabilities, income, and other financial information under the Ethics in Government Act of 1978. This public disclosure system is particularly important when prominent industry leaders enter senior levels of federal service. These federal officers who must file public financial disclosure Form 278 include “civilian employees in the Executive Office of the President (other than special Government employees) who hold commissions of appointment from the President.” There are approximately one hundred commissioned officers in the White House (Assistants to the President, Deputy Assistants to the President, and Special Assistants to the President), and all file a public financial disclosure Form 278.

A part-time SGE, however, does not have to file the Form 278 but instead files a private financial disclosure, Form 450. This means the SGE’s assets and income will not be disclosed publicly. Until recently, SGEs in the Executive Office of the President almost always served on advisory boards and commissions appointed by the President, for example, the President’s Foreign Intelligence Advisory Board. The President did not appoint a SGE “part time” to perform the functions of a senior White House official such as an Assistant to the President. Using the SGE designation in this manner would be an obvious and inappropriate circumvention of the requirement that senior White House officials publicly disclose their finances. But beginning with Elon Musk’s very influential role in the first few months of the second Trump Administration, SGEs from industry are having a greater role in government, and this trend may continue after his departure. The result is that, while the same financial conflict-of-interest laws apply to SGEs, they do not file Form 278, and there could be a lot less transparency about whether the laws are being complied with.

Musk was not really an SGE because his work with the Department of Government Efficiency (DOGE) was not the part-time work of an SGE. Musk’s duties in the Trump Administration far exceeded the duties of any SGE who has ever served in the Executive Branch. The impact of Musk’s decisions and recommendations on the Government also far exceeded that of any SGE who has ever served. Calling Musk an SGE to avoid the disclosure requirement of Form 278 was a charade.

Disclosure law avoidance at some point becomes disclosure law evasion, which, like tax evasion, is illegal. At best, Musk, when he did not file Form 278 and disclose his finances, was in an in-between area of law, “avoision,” a practice popularized in tax loophole literature. Such circumvention of the law is inappropriate for a public servant. Musk is now gone from the Trump Administration, but what will happen if another billionaire, perhaps one interested in space mining, were to take his place? Will the public at least be informed about the financial conflicts of interest of such a person who is influencing the highest levels of our government, or will those conflicts be secret?

VIII. The National Security Issues with Space Mining

Finally, space exploration and space mining involve matters important to our national security. Private companies coordinating with NASA in space mining ventures may be entrusted with classified information about communication systems in space and other matters. But can they be trusted?

Laws protecting national security, including laws requiring government contractors with access to classified information to report their contacts with foreign nationals, must be obeyed. But are they?

Once again, there were legitimate concerns around SpaceX and Musk’s undisclosed contacts with foreign nationals, although other companies participating in space mining ventures also could have undisclosed foreign contacts while gaining access to classified information of the U.S. government. It is critically important that disclosure laws be enforced and that individuals and companies who violate these laws be barred from government contracts or any other role in the government.

There is yet another potential abuse if information about the federal government’s involvement in space mining is hidden through classification. Classified information could conceivably include not just details about the technology used in space mining but also the location of potential claims by U.S. nationals and military plans to defend those claims. Overclassification of information in the federal government is common, and there could be a financial incentive for space mining venturers and their allies in the government to keep as much information classified as possible, even if there is no legitimate national security reason to for it to be classified. The United States or private companies coordinating with the government could stake claims to mineral deposits across vast areas of outer space while the public knows little or nothing about it. The United States could someday be dragged into an armed conflict over space mining claims that the public never knew existed.

IX. Will there be a space mining “race to the bottom” among nations, potentially leading to armed conflict, or a multinational space mining accord?

One approach consistent with existing international law would be to double down on the view that the 1967 Outer Space Treaty in its existing form prohibits space mining. The problem, as discussed above, is that the United States, China, and other countries with the most advanced space technology don’t agree and interpret international law to allow space mining in some circumstances.

Part of the legal problem is that current law, such as the Outer Space Treaty, prevents national appropriation of celestial bodies, but doesn’t clearly address the legality of extracting and owning resources derived from celestial bodies. Some international lawyers may assume that space mining will not come to fruition because under a strict interpretation of the Treaty it is prohibited. Yet many countries do not agree and are embarking on space mining ventures anyway. They will interpret the Outer Space Treaty to allow it, and even if legal bodies such as the International Court of Justice interpret the Treaty differently, rulings banning space mining could be ignored.

In a competitive, unregulated environment, in a “race to the bottom,” nations would very likely embrace minimal environmental and safety regulations in the hopes of attracting commercial space mining ventures to operate under their flag and share in the profits. In this scenario, space mining will be monopolized by a relatively few for-profit ventures aligned with nations that shift externalities onto others. Whatever legal restrictions are imposed by the Outer Space Treaty in this scenario would not be enforced.

The more realistic approach is to recognize that when space mining becomes economically feasible (it is uncertain when that will be), space mining will be inevitable. The better legal framework, therefore, would not prohibit it but would encompass an international project to regulate it.

As discussed earlier in this Article, important issues involving space mining are not now addressed by multinational agreements. Environmental degradation, disputed claims, and even armed conflict from space mining are severe risks that could be mitigated through multinational agreement. Now is probably the best time to undertake negotiations rather than waiting until viable space mining claims come to fruition.

Although some countries, including the United States, are taking the lead in space mining exploration, it is not known with certainty which country will be the first to assert an economically viable space mining claim. There is even less certainty as to which private commercial entities will stand to benefit from viable space mining claims. The financial conflicts of interest of public officials discussed earlier in this Article will have even greater impact when it is more fully known which companies and which politically connected billionaires stand to benefit and how.

Against today’s partial Rawlsian “veil of ignorance” of such matters, it may be possible to reach agreement on basic legal principles, and perhaps specific rules, governing space mining. Later, when it is known which countries and which private interests have achieved viable space mining claims, positions may harden and negotiations could be much more difficult.

An international space mining agreement could build on the foundation established by the Artemis Accords. A prerequisite, however, will be persuading most of the world’s major economic and military powers to join the agreement. An agreement that excludes countries having a viable interest in space mining is not likely to last. More specifically, the risk of armed conflict over space mining is greatly enhanced if Russia and China cannot be persuaded to participate. It is uncertain whether the Artemis Accords are an acceptable framework for making this happen. Thus far, Russia and China apparently have no interest.

A space mining accord would need to address whether the Outer Space Treaty prohibition on national appropriation on celestial bodies realistically can hold or whether nations should instead agree to change that language and recognize each other’s claims to space mining rights of limited duration and scope. One alternative is to retain the ban on national appropriation with the understanding that celestial bodies, in some circumstances, for example where space mining is safe, would have a legal status analogous to the commons used for grazing livestock at English common law, a system where people had shared rights to use land collectively. Shared access to resources in space is contemplated by the Artemis Accords, although the Artemis Accords treat outer space as a unique domain, not as a “global common,” and resource extraction in outer space is lawful only within designated safety zones.

Another alternative would be a permit system, perhaps analogous to that used in in the United States for public lands managed through grazing permits from federal or state governments, established under laws like the Taylor Grazing Act of 1934. Yet such a system would require a recognized international body that can grant space mining “permits,” something contracting nations might not be able to agree upon. If not, a more informal system of shared access to celestial bodies would prevail.

Yet a third alternative would be to depart from the Outer Space Treaty ban on national appropriation and allow legally recognized space mining claims, but only of limited duration and area. For example, under such an arrangement, a country establishing a continuous presence at a space mining area could assert an exclusive right to mine minerals in that area for a period of ten years, after which time rights to the claim would revert to an international body. The international body could perhaps auction off another ten-year exclusive claim to mining rights in the area, with proceeds to go to relief of world hunger or another global cause.

If the global community modifies or departs from the language of the Outer Space Treaty to accommodate space mining, an accord should address such issues as responsibility and liability for space debris and other environmental damage on Earth and in outer space, whether the first nation to reach an area and establish a continuous presence should get any priority and what that priority should be, a legal system for adjudicating disputes over space mining claims, and, perhaps most importantly, a clear prohibition on use of force to assert or defend a claim and a prohibition on other aggressive actions such as jamming communications systems or creating hazards to interfere with space travel or exploration by other nations.

Most importantly, a space mining accord will not last unless there is buy-in, and an incentive to stay in, for all the world’s major military and economic powers. International lawyers can start the work now of constructing different templates for such an accord, but negotiations and agreement among nations may be difficult until some of the world’s major conflicts here on Earth have been resolved or at least temporarily postponed.

X. Conclusion

Space mining, like other commercial uses of outer space, is an area of public policy where the United States and its federal officers must comply with international law, domestic law, and government ethics law. Enormous wealth is potentially at stake, but there is also a risk of environmental pollution from debris in space and on Earth as rocket launches increase in number and weaken an already fragile atmosphere.

The U.S. Government could squander billions of taxpayer dollars for the benefit of private industry rather than the public if government contracts, joint ventures with NASA, and space mining regulation are made by part-time federal officials like Elon Musk, who have a financial stake in the industry. Companies such as SpaceX and Blue Origin stand to make money from exploratory missions long before useful minerals are recovered in space and brought back to Earth. National security is also at stake if any one nation seeks to monopolize space mining of minerals vital to defense, yet the risk of global conflict over space resources escalates if international law in space is not agreed upon among nations and complied with.

For these reasons, the United States should proceed with caution in space mining, and in cooperation with other nations, not competition, and this means compliance with the Outer Space Treaty. The externalities from space mining ventures, including wasteful government spending, environmental damage, and risk of war, could be exacerbated by financial conflicts of interest inside our government, as well as the enormous influence on our government of billionaires who seek to make even more money in space mining. Aggravating factors include a lack of transparency in the financial disclosure system for federal employees, the government’s ability to overclassify information about space mining claims to keep it from the public, and, finally, the power of the President and heads of state in other countries to initiate armed conflict suddenly and for any reason. The vast wealth from space mining is speculative and probably will not be realized for decades to come. If our government does not proceed with caution, the costs could be thrust upon us far sooner.

On February 25, 2025, the author testified before the Subcommittee on Oversight and Investigations of the Committee on Natural Resources, United States House of Representatives, at a hearing on space mining. Portions of this article are based on that testimony.

---

Endnotes

---

Author

Richard William Painter

Univ of Minnesota Law School

S. Walter Richey Professor of Corporate Law, University of Minnesota, former chief White House ethics lawyer (2005–2007).   ...

View Bio →

---

Author

Richard William Painter

Univ of Minnesota Law School