Bilder on the Legal Regime for Mining the Moon

by Chris Borgen

Following-up on my recent post on commercial space ventures, I note that Richard Bilder has a new article posted to SSRN: A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options. I know that “helium-3″ might sound like the name of some sci-fi show like “Deep Space 9,”  but it is really a great hope for future energy needs. Bilder’s abstract explains:

This article addresses questions of U.S. international legal and space policy arising from current proposals of the U.S., Russia, China and India to establish national bases on the Moon, in part with the purpose of mining and bringing to Earth Helium-3 (He-3). He-3 is an isotope of helium that is available in quantity only on the Moon and could, as an ideal fuel for nuclear fusion reactors, furnish humanity a virtually unlimited source of safe, non-polluting energy for centuries to come. For example, it is estimated that 40 tons of liquefied He-3 brought from the Moon to the Earth – about the amount that could comfortably fit in the cargo bays of two of the existing U.S. space shuttles – would provide sufficient fuel for He-3-based fusion reactors to meet the full electrical needs of the U.S. – or a quarter of the entire world’s electrical needs – for an entire year. However, there is as yet no international consensus on whether, or how, any nation or private enterprise can exploit or acquire title to He-3 or other lunar resources. The article calls attention to what may become a “race to the Moon” to obtain He-3 and discusses: (1) the technical and economic prospects for the development of He-3-based energy; (2) the present legal situation concerning the exploitation of lunar resources such as He-3; and (3) policy options for the U.S. regarding the establishment of an international legal regime capable of avoiding conflict in the exploitation of He-3 and other lunar resources and facilitating the broad scale development of He-3-based energy.

In addition to the idea of using helium-3  for power on earth it is also one of the most commonly posited potential fuel sources for crewed spacecraft to the asteroid belt and outer planets. This would open the belt up to the possibility of asteroid mining (if that turns out to be economically feasible) as well as crewed scientific exploration of the outer solar system. Bilder sets out various options including ratifying the present Moon Agreement, establishing an international lunar resource regime outside of the framework of the Moon Agreement, and setting up either an international organization or some other enterprise for mining lunar helium-3.

Underlying this is his argument that significant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus, he argues, it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

For anyone interested in cutting edge issues in space law, this article is a great place to start.

26 Responses

  1. I think we should refrain from mining anything outside our planet until we’ve demonstrated what it means to be environmentally responsible or proper stewards of the earth’s bounty, to live in an ecologically sane and sustainable manner.

    In my opinion, It’s hubris of the worst sort to engage in these sort of enterprises until such time as we can assure that everyone on the planet is afforded the opportunity of exercising basic human capabilities (Sen and Nussbaum) consonant with respect for basic human rights. Until such time, I would prefer the putative “best and brightest” among us, as well as our collective energy and endeavors, be concentrated on the troubling and urgent problems that continue to inexcusably afflict far too many people on this planet. I well realize how unusual if not unpopular such a view may be, hence the need to articulate it.  

  2. I understand your point, Patrick, but, in any case, people will choose to put their efforts where they see fit. Some will focus on how to safeguard human rights, others on decreasing poverty, while still others are drawn to theoretical physics or space exploration.
    That being the case, I think the fact of the matter is that various states and private actors are interested in the resources that can be found on the moon and elsewhere in the solar system, especially if they are not available on earth (such as helium-3) but could be very useful. 

    Consequently, wouldn’t it be better to construct a regulatory regime to decrease “gold rush” type behavior and to incentivize responsible resource management in which many countries (not just the space-faring states) may reap the benefits of such exploration (albeit to different degrees)?
    As a general matter, I think it is part of human nature to look outward and push the frontier back.  The question is, do we want to provide a normative framework for these activities or not?

  3. Geez, and I thought that identifying and exploiting an abundant, non-polluting energy source WAS “concentrat[ing] on the troubling and urgent problems that continue to inexcusably afflict far too many people on this planet.”

  4. Imagine had the powers of Europe declared the Americas off limits until all of Europe shared the same basic standards of living. No doubt, equality of “basic human capabilities” might’ve been achieved, but not by lifting everyone up, but by dragging the rest down.
    I’m curious as to which conception of human “rights” entitles you to chain “the best and the brightest” to your desired “collective energy and endeavors,” but I know I don’t like it.

    And if such principles are the thoughts that would guide any international regime on space exploration, I’d rather there be no such regime at all and leave it to the Gold Rushers of the 21st Century to do what the rushers of the past did for America.

  5. While I think Mr. O’Donnell’s objections to mining anything extraterrestrial are… unreasonable, given it’s a mostly arbitrary distinction, it does raise another technical issue:

    Namely, Helium-3 is only present in the Moon’s surface 0.1 ppm, which means any mining activity would have to process truly massive amounts of the moon’s surface.  Given the current march of progress regarding Lunar colonization and exploitation, it’s likely all the posters on this blog will have died of natural causes before it becomes a legal issue as to whether we can strip-mine our satellite planet.

    I do, however, think we should work towards a more ordered framework for property rights in space.  It’s just not a pressing issue, because the initial costs of space exploitation are prohibitive to even the largest private entities.

  6. While currently large scale resource explotation of the moon or other extra terrestrial bodies seems many decades away, who knows when some new discovery or breakthrough could drastically alter the prospects. If there is a major helium-3 based fusion breakthrough, or some other major demand for lunar/asteriod mining develops, you could see a much quicker development. If there is hundreds of billions of dollars to be made exploiting lunar resources, I doubt it would take more then a decade or two for it to happen, even with today’s technology. Obviously if there is no huge profit to be made, it make take another century to get that far.

    If in 1940, someone had said man would set foot on the moon within 30 years, it would have seemed absurd. It wasn’t cheap, but when we became motivated we made it happen.

    As for the gold rush question, we should develop a framework designed to create one. The technological and other ancillary benefits that will come with the rush are more then worth allowing it to occur, not to mention the clean power it will provide. Huge potential profits are the best way to motivate private industry to take the financial risks involved.

  7. Helium 3 may be a moot point. There are several alternative fusion processes being explored, some of which can run on a hydrogen-boron11 process which also produces no neutrons, but is readily available on earth, and we have 200,000 years of it. We’d need such tech anyway, to even try to make bringing helium back from the moon practical for power production.

    The most promising is being discussed here:
    though we touch a bit on others.

    This doesn’t moot the property issue though. There are plenty of resources out there that will be of interest on earth, and will need a stable legal framework so that investors can know what the risks are of trying to get the resources. This is much the same problem socialist countries have with getting the knowledgeable and able oil companies to invest in their infrastructure–if you can just take it away, there’s no promise of a return on an investment, and no one will touch it.

  8. Screw the moon.  If it is economical to mine it and strengthen our nation in terms of energy resources, we should do it.  The sooner our nation can be energy independent and meet our needs, without expensive or stupid hair-brained schemes, the better.

  9. I think we should refrain from mining anything outside our planet until we’ve demonstrated what it means to be environmentally responsible or proper stewards of the earth’s bounty, to live in an ecologically sane and sustainable manner.
    Because, after all, we wouldn’t want to disturb the ecology of the Moon.

  10. any mining activity would have to process truly massive amounts of the moon’s surface

    My understanding is that the moon stabilizes our climate patterns, making Life possible.  Can someone please explain how much mass can be removed from the moon without changing its relationship to the Earth?  At least tell me that some have looked into it.

  11. I knew they should have just claimed it for the USA instead of this ‘all mankind’ tripe!

    Now we’re gonna hafta have LAWYERS to explore space.

    A surefire prescription for failure.

  12. Fen,

    The moon is gradually receding from the Earth and will eventually be lost.  It doesn’t do a thing that I am aware of to the climate other than create tides.  The big kahuna in climate issues is the Sun.  Since we are bound to lose the moon anyway why not grab what we can before it disappears??

  13. A little history for Patrick:

    From the archives of Seville:

    Petition of Juan the Sloth to their Holy Majesties Ferdinand and Isabella,

    Your majesties, I implore you to reconsider the thought of sending that Italian charlatan across the great uncharted sea. 

    After our extraordinary expenses in waging a needless war just to expel those peace loving muslim invaders from our shores, would it not be wise to concentrate on the many and varied needs of the people rather than waste our money on grandiose follies doomed to failure?

    The treasure wasted in this endeavor would be so much better employed to assist the peasants and combat illiteracy and provide national healthcare for all.

    Your faithful servant.
    Community Organizer

  14. A regime of property rights is essential for extraterrestrial resource utilization and opening up the space frontier. And No, we don’t need to “solve the problems on Earth” before opening up the space frontier any more than European immigrants who chose to cross the Atlantic and create a new society for themselves felt the need to “fix the problems of Europe” before founding colonies in the new world.

    It is silly to oppose privately financed efforts to utilize space resources and to open up the space frontier.

  15. ..Let whomever gets there first have all the mineral rights they can handle. Then get out of their way and let them get rich. My kids need some rich people to work for, and I don’t think the Saudis will hire them.
    Rights to raw materials have more to do with what you can defend than how good your lawyer can argue.

  16. A proper approach to private property rights in space should be “use-based”, analogous to the U.S. Homestead Act of the mid 19th Century. Claims can be filed, but possession of the those claims can only be realized by continuous settlement and economic activity over, say, a 5 year period. Asteroids and comets could be claimed and utilized in whole, but the larger bodies would be divided into, say, 100km by 100km grid, again analogous to the 160 acres one got title to if you farmed it for 5 years.

    I think such a use-based regime of private property rights is the most sensible approach that will foster the most rapid and effective development and settlement of the solar system. I have yet to read of anything more sensible.

  17. Go dig it up.  There are no endangered species to kill, no air or water to pollute.  Don’t let a couple weaselly politicians and lawyers get in your way.  Grab it while the grabbin’s good.

  18. Space law can be considered a sub-specialty within international law but also a “capstone” course requiring students to draw upon many prior subjects studied, including torts, contracts, property, government contracting, insurance, administrative law, foreign relations law, etc. Professor Bilder’s paper is an example of these points containing some specialized space law (Moon Agreement), the framework agreement for space law (Outer Space Treaty) and property rights issues.  Importantly, the Outer Space Treaty explicitly incorporates general international law (and as such the space law regime has not replicated debates that previously went on in the trade law regime regarding whether it is a self-contained system).  It is also the reason why those with a background in international law already know some space law.

    As the heaviest user of space in the military government, civil government and commercial contexts, the US is the most reliant nation on space and thus most vulnerable to risks to space assets. With growing space programs, China and India, will soon join, if they have not already joined, the list of countries that so heavily depend on space for their national security and economic well-being that they will have increased incentives to participate in protecting space. Space law also has a development dimension. For example, Remote sensing data is (can be) critical for agriculture and food supplies. For those interested in further study, the University of Nebraska has created the first space and telecommunications law LLM in the country (and the first one taught in English in the world). On November 2nd, we will host our third annual Space Law Seminar in conjunction with the Strategic Space Symposium in Omaha focusing on “Approaches to Space Security in the Transatlantic Arena.” On November 19-20, we will host our Second Annual Washington, D.C. conference with space law panels on space tourism, International Space Station, Military-Civil-Commercial Cooperation, and Export Controls/ITAR. For further information, visit

  19.  You people are fools – there is nothing on the Moon to mine. There is no oil, gas or coal because life has never existed there. There would be some metal, but for metal to be in payable quantities it needs geological processes to concentrate it. Specifically you need igneous activity to concntrate metals, and igneous activity has never existed on the Moon. The Moon is too small for that.

  20. Well, this thread certainly took off on an unrelated tangent.

    To the poster further above concerned with removing mass from the moon, the actual Helium-3 mass would be negligible.  The vast amount of processed lunar surface would be left in place, on the moon.

  21. I think we should refrain from mining anything outside our planet until we’ve demonstrated what it means to be environmentally responsible

    This is not falsifiable.  Even if humans cut their population by 3 orders of magnitude and moved to subsistence level farming, there would still be folks claiming that we haven’t demonstrated environmental responsibility.

    Can someone please explain how much mass can be removed from the moon without changing its relationship to the Earth?

    We may need to process a lot of moon material, but we aren’t going to be removing any substantial amount. Even if we wanted to we probably couldn’t.  The thing is that we need to sift through a lot of moon rocks to get out the extremely valuable Helium-3, and that is what we would take back to Earth.  I doubt we could even measure the change of the Moon’s mass if we removed all its Helium-3.

  22. Bill, there’s been plenty of geological activity on the moon. The larger dark areas you see when you look at it are basaltic plains, IIRC. The big problem with mining the moon is that there’s very little that’s worth taking off. It’d be much cheaper to mine asteroids for rare earths and platinum group metals, and helium three is a bit of a strawman, since there’s a number of very viable methods to generate power on earth, from earth borne minerals. Aside from the polywell and other fusion concepts I mentioned above, there’s a similar number of alternative fission processes, provided you can shout over the screams of the inviro-wackoes and paranoids.

    Just about anything mined on the moon would be utilized on the moon. Anything you want from the moon can be gotten from asteroids or comets much cheaper than lifting it out of the moon’s gravity well.

    As for property rights, one of the big issues is figuring out which gov it “belongs” to, and thus whose laws apply. This is easily fixed by not letting any nation lay claim to it, outside of territory around probes and landing sites. Declare the moon a sovereign body. Anyone settling on the moon would give up their citizenship to whatever country they came from, becoming citizens of the moon, and nowhere else.

    Other large bodies like the moon would have similar status, smaller ones would be claimed through a combination of homestead and salvage laws. Basically, you get there, and mark it, it’s yours.

    Removing ownership by earth citizens from the equation removes most concerns about property in space, except for the socialists who don’t believe anyone should own anything.

Trackbacks and Pingbacks

  1. [...] Opinio Juris col­league Chris Bor­gen has a post up com­ment­ing on a new paper by Richard Bilder on SSRN on legal issues involved in min­ing for [...]

  2. [...] ON the legal regime for mining the moon. And the full paper by Richard Bilder is here. It’s very interesting, though for reasons [...]

  3. [...] a couple posts up lately discussing issues of private enterprises investing in space exploration. Helium-3 mining, which has been been something of a science fiction trope over the years, is closer to becoming [...]

  4. [...] Industry is going to be an important part of commercial development of the Moon, and one of the side-effects of commerce is lawyers. Chris over at Opinio Juris looks at a discussion on “Bilder on the Legal Regime for Mining the Moon“. [...]