Who Owns the Moon?

The Antarctic Treaty's approach to sovereignty and claims is particularly relevant to lunar governance.

by Ruwantissa Abeyratne

 

The moon is the first milestone on the road to the stars. – Arthur C. Clarke

The Race for the Moon

The answer to the above question is “no one”.

The world in 1967 when the Outer Space Treaty was adopted, when only the then USSR and the United States were in the race for the moon, and even in 1979, when  the Moon Treaty was adopted, they were still the same players, was quite different from the current astro-political situation. Now China – which landed a spacecraft on the dark side of the moon recently – and India, with its Chandrayaan 3 –  a mission in development which  aims to demonstrate landing and roving capabilities on the lunar surface – and Japan’s SLIM (Smart Lander for Investigating Moon) –  a  spacecraft that is planned to land on the moon, which is an ambitious mission aimed at demonstrating precise lunar landing technology, and perhaps many more to enter the fray, are vying for a piece of lunar resources. There are numerous private enterprises that are also interested in the race for the Moon. These enterprises frequently collaborate with national space agencies such as NASA, harnessing commercial innovations to propel lunar exploration forward.

A plane passes in front of the full moon as seen from Curitiba, Brazil on March 9, 2020. [ Photo: NewsWeek/HEULER ANDREY/AFP]

SpaceX, founded by Elon Musk, is a prominent figure in the realm of space exploration. The company is working on the Starship spacecraft, designed to transport both cargo and crew to the Moon and beyond. NASA has selected SpaceX’s Starship for its Artemis program, with the goal of landing astronauts on the lunar surface.

Blue Origin, founded by Jeff Bezos, is another key player, focusing on the development of the Blue Moon lunar lander. This lander is intended to deliver payloads to the Moon and support human missions. Blue Origin is also a vital partner in the National Team, a consortium of companies collaborating on lunar lander development for NASA’s Artemis program.

Astrobotic Technology, based in Pittsburgh, specializes in delivering payloads to the Moon with its Peregrine and Griffin landers. The company has secured several contracts under NASA’s Commercial Lunar Payload Services (CLPS) program to transport scientific instruments and technology demonstrations to the lunar surface.

Intuitive Machines is developing the Nova-C lunar lander, which is designed to carry payloads to the Moon. As a participant in NASA’s CLPS program, Intuitive Machines plans missions to deliver scientific experiments and technology demonstrations to various lunar locations.

ispace, a Japanese company with a global presence, is working on the Hakuto-R lunar lander and rover. The company aims to offer commercial transportation to the Moon and support lunar exploration and resource utilization.

Firefly Aerospace is creating the Blue Ghost lunar lander to deliver scientific and commercial payloads to the Moon. Firefly Aerospace has also been selected by NASA for CLPS missions.

These companies are leading the charge in commercial lunar exploration, each bringing unique technologies and approaches to enhance the accessibility of the Moon for scientific research, resource utilization, and potential human settlement.

Why the Sudden Interest in the Moon?

This recent interest in the Moon by so many players is because, despite the Moon’s seemingly desolate landscape, it holds valuable minerals such as rare earth elements, iron, titanium, and even helium, which has applications in superconductors and medical equipment. The estimated worth of these resources ranges dramatically, from billions to quadrillions of dollars, highlighting the potential for substantial financial gain. However, it is crucial to recognize that tapping into these lunar resources represents a long-term investment. The technology required for extracting and transporting these materials back to Earth is still in the developmental stages and will take considerable time to become feasible.

With this “free for all” the simplistic pronouncements of the Outer Space Treaty and the Moon Treaty could be  subject to serious review.  For example,  The United States is currently working to create a new framework of guiding principles for lunar exploration and resource utilization. Known as the Artemis Accords, these principles assert that the extraction and use of lunar resources should comply with the Outer Space Treaty, although they acknowledge that some additional regulations may be necessary.

To date, over 40 countries have agreed to these non-binding accords, yet China remains a notable exception. There is ongoing debate about whether the establishment of new rules for lunar exploration should be spearheaded by a single nation. More about that later.

The Outer Space Treaty

The Outer Space Treaty of 1967 makes the sweeping statement that outer space and celestial bodies shall be open for exploration by mankind, which includes, inter alia, the freedom to conduct research, experiments and other forms of exploration. Article I stipulates that the exploration and utilization of outer space, including the Moon and other celestial bodies, must be conducted to benefit and serve the interests of all nations, regardless of their level of economic or scientific advancement. It asserts that outer space must be open for exploration and use by all States without any form of discrimination, ensuring equality and adherence to international law, and that there should be unrestricted access to all regions of celestial bodies. Furthermore, it declares that scientific investigation in outer space should be free, with States promoting and supporting international cooperation in such research.

In Article II the treaty provides that outer space, including the Moon and other celestial bodies is not subject to national appropriation by claim or sovereignty by means of use or occupation, or by any other means. Furthermore, the Treaty, in Article III requires that States parties to the Treaty  must carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, according to the principles of international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.

Article VI of the Outer Space Treaty specifies that State Parties are internationally responsible for their national activities in outer space, regardless of whether these activities are conducted by governmental or non-governmental agencies. This provision clearly introduces the concept of strict liability erga omnes (applicable to all) , applying the jus cogens (compelling or peremptory law which stands above all other laws) principle to space activities conducted by States. It can be interpreted as applicable when States present themselves to the international community as providers of space technology used for air navigation. Additionally, Article VI mandates that non-governmental entities must receive authorization and ongoing supervision from the appropriate State Party, ensuring that the State of the entity’s nationality is vicariously liable for the entity’s activities, thereby assigning responsibility to the State involved.

The Moon Treaty

The Moon Treaty, formally called the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, is an international agreement intended to regulate the exploration and utilization of the Moon and other celestial bodies. It was crafted to ensure that such activities align with international law and benefit all of humanity.

This treaty addresses a range of activities, from resource extraction and environmental protection to the preservation of lunar heritage sites. The treaty designates the Moon and its resources as the “common heritage of mankind,” which means that the benefits of lunar activities should extend to all countries, not just those capable of reaching the Moon, thereby preventing any single nation from claiming sovereignty over lunar territories or resources. Furthermore, the treaty bans the placement of weapons of mass destruction on the Moon and the establishment of military bases or fortifications, underlining that the Moon should be used exclusively for peaceful purposes.

It includes measures to protect the lunar environment, ensuring that activities do not cause harmful contamination or detrimental changes to the Moon’s ecosystem. Additionally, the treaty promotes international cooperation in lunar exploration and research, advocating for the sharing of scientific data and the outcomes of exploration missions. It stipulates that the exploitation of lunar resources should be regulated by an international regime that is yet to be established, ensuring that such resource use is sustainable and benefits all of humanity.

Adopted by the United Nations General Assembly in 1979 and opened for signature in 1984, the Moon Treaty has not seen widespread adoption, with only 17 countries ratifying it todate, while major spacefaring nations like the United States, Russia, and China have neither signed nor ratified it. In essence, the Moon Treaty seeks to establish a legal framework for the responsible and equitable exploration and use of celestial bodies, although its limited acceptance has resulted in its principles not being universally implemented.

The Artemis Accords

The Artemis Accords propose a set of principles designed to guide international cooperation in the exploration and utilization of the Moon, Mars, and other celestial bodies. These principles are aimed at ensuring that space activities are conducted in a manner that is peaceful, transparent, and sustainable.

One of the primary goals of the Artemis Accords is to ensure that space exploration is conducted for peaceful purposes and in accordance with international law. This emphasis on peaceful exploration is fundamental to preventing conflicts and ensuring that space remains a domain for scientific advancement and human progress.

Transparency is another crucial aspect of the Artemis Accords. Signatories are committed to conducting their space activities openly, sharing their policies and plans with the international community. This transparency helps to avoid misunderstandings and conflicts, fostering a cooperative environment in space.

The Accords also advocate for interoperability, promoting the use of standards that allow different space systems to work together seamlessly. This interoperability is essential for facilitating international cooperation and ensuring that collaborative efforts in space are effective and efficient.

In addition to promoting cooperation, the Artemis Accords emphasize the importance of providing emergency assistance to astronauts in distress, in line with the Rescue Agreement. This commitment ensures that all participating countries are prepared to support each other in times of need, enhancing the safety of space missions.

The registration of space objects is reinforced by the Artemis Accords, which highlight the importance of accountability and traceability in space activities. By registering space objects with appropriate international bodies, signatories help maintain a clear record of space missions and their participants.

The public release of scientific data obtained from space activities is another key principle of the Artemis Accords. By committing to share this data, signatories support scientific advancement and encourage international collaboration in space research.

The preservation of heritage is also a significant aspect of the Artemis Accords. The principles call for the protection of historic sites and artifacts on the Moon and other celestial bodies, ensuring that human heritage in space is safeguarded for future generations.

The extraction and utilization of space resources are supported by the Artemis Accords, provided these activities are consistent with the Outer Space Treaty. The Accords recognize the need for further international discussions to develop specific regulations governing the use of space resources.

To prevent harmful interference, the Artemis Accords encourage signatories to coordinate and notify each other about their space activities. This deconfliction of activities is essential for maintaining a safe and cooperative environment in space.

Finally, the Artemis Accords emphasize the importance of minimizing space debris and ensuring the safe disposal of spacecraft. By focusing on orbital debris and spacecraft disposal, the Accords aim to protect the space environment for future exploration and use.

Overall, the Artemis Accords strive to establish a cooperative and responsible approach to the exploration and utilization of outer space. By promoting shared benefits and the peaceful use of space, the Accords aim to ensure that space activities contribute positively to humanity as a whole.

My Take

I agree with Jill Stuart, a space policy expert who said “ I think there’s an interesting analogy to the Antarctic… “We’ll probably see research bases being set up on the Moon like they are on the continent.”

The Antarctic Treaty offers a compelling blueprint for constructing a robust space law regime tailored to meet the challenges and opportunities presented by lunar exploration and resource utilization. Similar to Antarctica, the Moon is characterized by its remoteness, harsh conditions, and uninhabited nature, setting the stage for an international framework that emphasizes cooperation and responsible stewardship.

A fundamental principle of the Antarctic Treaty is the dedication of Antarctica to peaceful purposes and scientific research, explicitly prohibiting military activities. This ethos could be mirrored in lunar governance by designating the Moon as a zone of peace, thereby fostering an environment conducive to scientific exploration and collaboration among nations. By restricting military use, conflicts can be mitigated, ensuring that lunar activities contribute positively to global scientific knowledge and benefit all of humanity.

Central to the success of the Antarctic Treaty is its promotion of international collaboration. Participating nations are encouraged to conduct joint research projects and share scientific data, reinforcing a spirit of cooperation that transcends geopolitical boundaries. Similarly, a lunar governance framework could facilitate collaborative missions to the Moon, where countries pool resources and expertise to accelerate technological advancements and maximize scientific discoveries. This collaborative approach not only enhances efficiency but also promotes equitable access to lunar resources and opportunities.

Environmental protection lies at the core of the Antarctic Treaty’s provisions, safeguarding Antarctica’s unique ecosystem through regulations on waste disposal and minimizing human impact. Drawing from this, a lunar governance regime could implement similar safeguards to preserve the pristine lunar environment. Regulations could be established to prevent harmful contamination and ensure the sustainable use of lunar resources, thereby preserving the Moon’s scientific value and potential for future exploration.

While the Antarctic Treaty currently prohibits commercial exploitation of resources, it provides a framework for managing such activities should they be considered in the future. Similarly, a lunar governance regime could regulate the extraction and utilization of lunar resources to ensure they are conducted sustainably and for the collective benefit of humanity. An international body could oversee resource management, ensuring that all countries have equitable access and that activities adhere to agreed-upon environmental and ethical standards.

The Antarctic Treaty’s approach to sovereignty and claims is particularly relevant to lunar governance. By setting aside sovereignty claims and prohibiting new claims during its tenure, the Treaty promotes Antarctica as a shared space for peaceful cooperation. A similar principle could be applied to the Moon, preventing any single nation from claiming sovereignty over lunar territories and reinforcing the concept of the Moon as a global commons. This would facilitate collaborative efforts in lunar exploration and ensure that all nations have equal opportunities to participate and benefit.

Crucially, the Antarctic Treaty includes mechanisms for resolving disputes through negotiation and consultation, fostering a framework of trust and cooperation among its signatories. A lunar governance framework could adopt similar dispute resolution mechanisms to address conflicts that may arise from overlapping interests or interpretations of regulations related to lunar activities. By promoting dialogue and peaceful resolution, these mechanisms would uphold harmony among spacefaring nations and sustain momentum in lunar exploration endeavors.

In conclusion, the Antarctic Treaty serves as a pertinent model for shaping a comprehensive space law regime that addresses the complexities of lunar exploration and exploitation. By embracing principles of peaceful use, international collaboration, environmental protection, resource management, non-sovereignty, and dispute resolution, a lunar governance framework can ensure that lunar activities are conducted responsibly and equitably. This analogy underscores the significance of cooperative legal frameworks in managing shared and remote environments, securing a sustainable future for lunar exploration for the benefit of all humanity.

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.