Corporate Law

Who Owns the Moon?

Christopher Wanjek

Lunar resources could yield a multibillion-dollar industry in the next decade, but how those riches will be distributed remains up the air.

In 1967, in the midst of a space race between the United States and Soviet Union, and in the heat of a cold war, more than 60 nations reached a remarkable agreement for the times — a pledge that no nation may claim sovereignty of outer space or any celestial body. Known as the Outer Space Treaty, the agreement also prohibits the use of nuclear weapons in space and reserves the Moon, Mars, and beyond for peaceful exploration. India was one of the original signers; 110 nations have since ratified the treaty.

The agreement, officially known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was not without precedent. The Antarctic Treaty of 1961 spelled out similar terms for the ice continent: no military activity of any sort and no new claims of sovereignty (seven countries had predating territorial claims, although none are recognized internationally). Both treaties have proven to be successful in fostering international cooperation and allowing for scientific exploration.  And both treaties now are in jeopardy. 

For Antarctica, the Madrid Protocol, part of the Antarctic Treaty System which states, among other stipulations, that “[t]he protection of the Antarctic environment and dependent and associated ecosystems… shall be fundamental considerations in the planning and conduct of all activities,” will be up for review in 2048. Some watchers of the ice have questioned the intents of China and Russia, in particular, and their recent, increased interests in Antarctic resources such as minerals. To wit, Antarctica has been a protected sanctuary in part due to the Antarctic Treaty but in part due to the difficulty in extracting resources in such a harsh environment. And yet, technology (and global warming) may ease the burden of the latter, placing greater pressure on the former.

Likewise on the Moon, when the Outer Space Treaty was signed, no human had even stepped on the lunar surface. The notion of staking claims on the Moon has never been challenged because the difficulty of reaching the Moon and establishing bases and infrastructure there has limited such ambitions. This is changing rapidly and dramatically, though. Advances in rocketry and the rise of space entrepreneurs such as Elon Musk have conspired to lower the cost of access to space from the long-standing price tag of US$20,000 per kilogram down to US$2,000/kg. And as interest in space heats up, the cost will continue to fall.

As in the century before in the context of Antarctica, nations are seeing increasing value in establishing a presence on and around the Moon.  India, for one, has its successful Chandrayaan-2 mission, which, from a lunar orbit, is surveying for water and minerals on the Moon and has produced very useful data. The follow-up Chandrayaan-3, planned for a 2022 launch, will attempt to land on the Moon (the lander element of the Chandrayaan-2 mission failed), which would make India only the fourth nation to succeed in such an endeavor, behind Russia, United States, and China.

In the next two years, the United Kingdom, Germany, Mexico, Japan, and Russia all plan to place landers on the Moon. Israel will give it another go in 2024, having unintentionally crashed its lander in 2019, releasing a capsule containing living tardigrades. China, too, plans to place a lander on the lunar south pole by 2024, survey for resources there, and, by 2027, establish robotic “in situ resource utilization” technology — that is, turning lunar resources into air, water, and fuel. Note that in recent years, China has landed on the Moon’s far side; operated a remote rover for many weeks; and, in late 2020, brought to Earth more than four pounds of moon rocks — impressive feats for a relative latecomer to spacefaring.

The United States, feeling somewhat threatened by China’s achievements, in particular, had ambitious — in reality, foolish and shortsighted — plans to return humans to the Moon by 2024, set by the previous presidential administration. These plans have been pushed back till 2028, at best. Clearly a new “space race” is afoot.  Is the current Outer Space Treaty up to the task of protecting the global community from an exploitation of lunar resources by just a few nations? Arguably not.  The key wording of the treaty — “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” — may seem clear but allows for ambiguity. Consider these two scenarios:

[1]. The Moon is a big place, you might argue. Surely, as on the Antarctica continent, there’s enough space for everyone to explore. Not quite. There will be limited, prime real estate. For example, the first scientific bases will be, coincidentally, on the lunar south pole because of a stable temperature of −50° C, sunlight at least 70 percent per 24 hours, and water-ice.  Elsewhere on the Moon, the 14-day cycle of darkness followed by sunlight translates to huge temperature swings from −200° to +100° C, which is not fit for man or machine. But on the south pole there are high crater rims on which the sun never sets. These are limited and highly valuable spots that could provide consistent and abundant solar power. Similarly, there are shadowed craters with ice deposits — again, greatly limited in terms ease of access and harvest. That’s not just H2O to drink but also rocket fuel to burn, because rocket fuel is hydrogen and oxygen. NASA and other space players already have set a price on this ice at US$500/kg, which constitutes a billion-dollar industry considering the amounts of water and fuel needed for lunar operations. Outer Space Treaty aside, whichever nation gets to the Moon first will have its pick of the best patches for solar energy and ice harvest, the latter of which is a non-renewable resource. Taking this perhaps three decades into the future, which nation gets to charge tourists to the historic Apollo landing sites, with the assumption that the United States cannot own this lunar land?

[2]. A second shortfall of the Outer Space Treaty applies to asteroids, many of which contain water and precious minerals. In no direct violation of this treaty, the United States in 2015 passed the Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act, which states that private companies can own and sell what they extract; they just can’t own the celestial body itself, abiding to the wording of the Outer Space Treaty. That’s a bit of a paradox, though. Under this US law, a company could mine an entire asteroid, selling the resources as water, fuel, oxygen, or construction materials, until there was not a crumb left, and thus, never have owned what it completely cannibalized. Luxembourg, too, an original signer of the Outer Space Treaty in 1967, passed a law almost fifty years later to the day, in 2017, providing companies the rights to space resources they extract from the Moon, asteroids, or other celestial bodies. As a result, companies with interest in space are establishing their headquarters in Luxembourg.

Enter the Moon Treaty, also known more fully as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, an alternative to the Outer Space Treaty. This treaty covers most of what is stated in the Outer Space Treaty yet poses an addition element: that space resources belong to all of humankind and cannot be exploited for private, commercial, or national gain. The Moon Treaty has been ratified by only 18 countries, none of which currently operate in space. Spacefaring nations see the treaty as an afront to free enterprise and space development. In short, they argue, what company would invest in space infrastructure if there were no possibility of profit? Moreover, how would the share of space sources be distributed fairly to 8 billion earthlings?

So, back to the original question: Who owns the Moon? The answer very well may be whoever gets there first. When the rubber hits the regolith and when trillions of dollars in profits are realized, treaties will be redrawn or otherwise reinterpreted to allow for the commercialization of lunar and other space activities. Sadly, the history of colonization is the history of the exploitation of resources—not shared wealth among nations but rather national appropriation, duplicity, treaty abandonment, and war.  Only a sagacious rewriting of the Outer Space Treaty will prevent duplicity while ensuring proper incentives to tap into space resources for the betterment of humankind. 

Christopher Wanjek is a U.S.-based science and health writer and author of the book Spacefarers: How Humans Will Settle the Moon, Mars, and Beyond (Harvard University Press, 2020).

Image Credits: The Conversation