William & Mary Environmental Law and Policy Review


In July 2017, Moon Express, a private spaceflight company, announced plans to build an outpost on the South Pole of the Moon by 2020. The goal? To mine the Moon for minerals and water that could then be sold for profit. Indeed, the Moon has been found to possess resources with lucrative uses, both in space and here on Earth. The potential for huge rewards has incentivized several private and governmental actors to launch planned expeditions to the Moon, with China becoming the third nation to land a spacecraft there in 2013. Both China and India have since announced plans to send robotic missions to the lunar surface, and the United States recently renewed a pledge to once again land an astronaut on the Moon.

The Moon is not the only celestial goldmine, either. Billionaire Elon Musk has stated that the exploitation of Mars will be necessary to create a self-sustaining colony on the Red Planet. Certain ores could even be mined and sent back to Earth for profit. And samples of Martian dust and rock could sell for high prices to researchers and collectors. Although less imminent than planned settlement and exploitation of the Moon, the colonization of Mars has become an increasingly realistic probability. Several private and governmental bodies have already announced planned exploration and eventual settlement of our terrestrial neighbor.

With galactic development on the horizon, legal scholars have argued that it is time to revisit international space law—grounded in Cold War fears of an arms race in space—to create the necessary incentives for private exploitation of our solar system. As it stands, the 1967 Outer Space Treaty, the seminal treaty on space law, prohibits claims of national sovereignty or legal jurisdiction over any celestial body, creating legal barriers for those wishing to extract the vast resources beyond Earth. This Article does not disagree with other scholars’ arguments for the promotion of private industry in space—in fact, it endorses a new property paradigm to remove the existing obstacles to extraction of galactic resources. Instead, this Article considers the impacts of galactic exploitation on celestial bodies and calls for the expansion of existing environmental treaties, particularly those relating to preservation of cultural and natural heritage, to restrict exploitive activities within certain areas of celestial bodies that have significant cultural, scientific, or intrinsic value. This Article is not the first to consider environmental preservation in space, nor preservation of galactic heritage sites, but so far most scholarship on this issue has focused on a regulate-as-you-go approach, or approaches that are without the cumbersome burdens of international treaty-making. This Article adopts an alternative methodology.

Rather than considering whether and how nations should and could control the behavior of their nationals once they are beyond Earth’s atmosphere, this Article calls for the laying of some ground rules before the extraction of celestial resources begins. Specifically, it calls for mirroring the Convention concerning the Protection of World Cultural and Natural Heritage (the “World Heritage Convention” or “WHC”) and its underwater heritage companion (the “Underwater Heritage Convention” or “UHC”) to establish an international body to promulgate regulations for the preservation of galactic sites of universal cultural, natural, or scientific value. In these so-called “galactic heritage sites,” nations would agree to restrict the activities of their nationals, enforced by existing norms, licensing regimes, and penalties. Although other areas of galactic bodies would be opened for the purposes of resource extraction and human settlement, these heritage sites would be largely off-limits. The Moon has several cultural sites where nations have landed spacecraft, and even human beings; Mars has areas that are favorable to the development and existence of life, and both bodies have natural landmarks that are scientifically and intrinsically significant. For these reasons, the time has come to preserve the heritage of our galaxy before it is too late.

Part I will analyze the cultural, natural, and scientific significance of the Moon, arguing why preservation of a lifeless body is worthwhile. Part II will consider the importance of preserving Mars, particularly its potentially life-harboring regions. And Part III will provide an overview of the sources of international law currently governing space and their shortcomings for the preservation of celestial bodies. Returning to Earth, Part IV will evaluate the heritage conventions as a framework for protecting our galaxy. Finally, Part V will propose a solution, explaining why international treaties on heritage preservation provide an ideal model for the protection of celestial bodies. Ultimately, this Article proposes a framework for galactic preservation that is cooperative and precautionary, and that brings clear ground rules to an area currently in legal flux.