Who owns the Moon? Analysis by Foreign Policy

The Foreign Policy magazine has published an article claiming that space is set to become the new Wild West. Caliber.Az reprints the article.

Once upon a time, outer space, like the air and seas, was one of the global commons, held jointly for all of humanity. But great power competition, a deficit of rules, and a booming private space economy are eroding that status. The new cold war between the United States and nations such as Russia and China is extending to the cosmos: NATO has declared space an “operational domain.” And like the old Cold War, the new one poses a threat to life on Earth itself, from the dangers of space debris to the possibility of targeting satellites in an already-crowded Low Earth Orbit (an orbit around the Earth at 1,200 miles or less) that so much of modern life is dependent upon.

“Who owns the moon?” is no longer a rhetorical question, but rather one that goes to the heart of a governance deficit that is likely to spur interstellar confrontation. Elon Musk and other space entrepreneurs and governments want to colonize Mars. China has plans to construct a nuclear-powered base on the moon by 2028. NASA plans to build a permanent Moon base by 2030. The moon’s real estate itself is already potentially resource-scarce, with water concentrated at the north and south poles. Add to that the incentive of a treasure trove of rare minerals on asteroids and the moon, larger than the depleting supply of those that exist on Earth, and outer space starts to look like a potential Wild West.

Several governments, which under current international law are responsible for their private sector’s space activities, have adopted laws permitting individual private sectors to exploit space resources. In the United States, former President Barack Obama signed a 2015 commercial space law granting US businesses the right to extract resources throughout the cosmos. The United Arab Emirates followed suit in 2019.

Similarly, Luxembourg, seeking to become a European hub for space mining, has enacted a law granting private firms the right to space resources, and created a space mining center. And as if to demonstrate space was just another American frontier, former US President Donald Trump took it a step further with a 2020 executive order authorizing the commercial development of space resources, explicitly rejecting the notion that space is a global commons.

Yet the most foundational international legal document regarding space activities, 1967 Outer Space Treaty (OST), with 113 parties to it—including the United States, Russia and China—has language that appears inconsistent with such claims. All agreed to the principles in the OST, which states in Articles I and II:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. … 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.

Unfortunately, both technology and geopolitics have overtaken the OST. The treaty doesn’t speak to a plethora of issues created by proliferating space activities such as the growing problem of space debris or how to deal with the blinding of satellites, and it lacks a mechanism to resolve disputes. There are some additional legal agreements in effect under the United Nations  Office for Outer Space Affairs, covering other issues: liability for damage caused by space objects, safety and rescue of spacecraft and astronauts, and registration of space activities.

In theory, a 1979 Moon Agreement exists that could adjudicate behavior on the moon, but it has not been ratified by any major space powers and is viewed as a failed treaty. Space is headed toward an anarchic scramble for advantage amid conflicting rules and claims to the cosmos, mirroring the fragmentation of the rules-based order into contending blocs and regions. The brief moment of post-Cold War idealism about space is gone. Russia is canceling its involvement with the International Space Station (ISS) in which it joined in 1993, and NASA is banned from cooperating with China by the 2011 Wolf Amendment.

That ban failed to set back China’s remarkable space program, which has already achieved landings on the far side of the moon and its own rover on Mars. Beijing’s space capabilities are now barely a step behind those of the United States. Meanwhile, the nominal custodian of space rules, the UN Office of Outer Space Affairs, works in obscurity, facilitating talks on rapidly expanding space activities and emerging problems with little investment from the major space powers.

To its credit, NASA has sought to narrow the rules deficit to facilitate its efforts to return to the moon and prepare for a Mars voyage by creating the Artemis program, named after the twin sister of Apollo in Greek mythology, whose name blessed the US moon landings. President Joe Biden has continued the program, which began under the Trump administration. NASA has established a set of accords on transparency and inter-operability, rules, a code of conduct for civilian space agencies to guide the exploration of the moon, Mars, and cislunar space, the vast region from the Earth to the region around the moon, where real Star Wars may be fought.

Artemis is a complex, phased plan to put Americans—and partner countries—back on the moon. NASA has collaborated with commercial actors, not least Musk’s SpaceX, for much of the Artemis space launch technology. Artemis 1, the initial test flight using its Space Launch System intended to deliver astronauts to the moon in the Orion capsule in the future, successfully launched last November.

Had the Artemis Accords not been drawn up unilaterally by NASA, they would have served as a strong US proposal on which to base negotiated global rules, much of which likely would have been accepted. NASA says the Artemis principles were drafted in accordance with the OST, and the vast majority are. To date, 23 nations have signed on, mainly the Anglosphere and other US allies and partners. That the accords were presented as a fait accompli led some to view them as an assertion of US primacy—intentional or not—that reflected the Biden administration’s democracies vs. autocracies ideology.

Some major space powers—predictably, China and Russia, but also Germany and India—have not joined. Even if the toxic state of US-China ties weren’t an issue, the Wolf Amendment is still in play. Instead, alarmed by the US ban, China has significantly accelerated its investment in its own, largely parallel lunar exploration plans. It is also collaborating with Russia on a planned moon base and other activities in space.

Yet the Artemis principles are mostly sensible and guard against mutual vulnerabilities and shared risks. These include following Outer Space Treaty provisions of due regard for other activities and harmful interference of other parties; open access to scientific data, including that from joint ventures; giving notification and coordination of activities “with relevant parties” to deconflict any problems; and developing interoperable exploration infrastructure such as landing facilities, fuel storage, and communications and power systems. Artemis signatories also agree to “respect the principle of free access to all areas of celestial bodies and all other provisions of the Outer Space Treaty.”

But the language around space resources is baffling. Artemis includes self-declared “safety zones,” where accord signees space activities can take place. But the problem is the question of what sort of commercial actions—like appropriating property—can take place? The accords say that the extraction of resources from asteroids or the moon should be in compliance with the OST: “Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.”

There is no shortage of private firms in the United States, Europe, and Japan gearing up for space mining. But the Outer Space Treaty explicitly says celestial bodies are not subject to “national appropriation by claim of sovereignty.” It adds that the moon or asteroids cannot be claimed “by means of use…. or by any other means.”

So, what is the legal basis for nations to build bases on the moon or grant their respective businesses rights to mine celestial bodies? Or in effect, claim property to erect bases? Who owns the moon, or at least the good real estate? The Artemis Accords logic seems to differentiate owning resources from sovereign claims or property, though there is little ambiguity in the OST. If China, Russia, or India get there first, what if they grant rights to their own space mining companies? We’re back to the possibilities of claims—and claim-jumping, like gold miners in the Old West. Add to this the United States, China, and Russia putting in place the means for space warfare, and the possibilities of conflict become obvious.

Where would establishing a genuine set of governance norms begin? Arguably, the most urgent issue is removing space debris, a mutual risk to all space-faring nations. As of May 2022, there were 5,465 satellites in orbit, belonging to some 100 nations. 3,433 are US satellites, about 2,900 from the private sector. The advent of tiny CubeSats like those used for SpaceX’s Starlink broadband devices, has vastly increased the numbers. Musk plans to launch 42,000 of them, while Google and Amazon each plan to launch about 3,000.

These satellites are all vulnerable to at least 27,000 pieces of space debris, tracked by US Defense Department’s Space Surveillance Network, and some 500,000 or more tiny pieces less than two inches in length. Even small pieces of debris traveling at about 17,000 miles an hour can do catastrophic damage to satellites, which travel at the same speed. Last December, a launch of Starlink CubeSats barely missed colliding with a Chinese space station. Last November, a Russian anti-satellite test created 1500 pieces of debris that came so close to the ISS that those aboard—including Russia’s own cosmonauts—had to take shelter.

Even during the Cold War, the United States and the Soviet Union established some rules of the road, from arms reduction treaties to infectious disease cooperation. But so far, there is a risky deficit of rules for outer space behavior, a problem shared by all space-faring nations. Shrinking that deficit will be a herculean task. But the mutual problem of space debris offers a starting point.

Like climate change, space debris is a common problem outside the scope of major power competition that should be the shared responsibility of all concerned. In this case, the major space powers—the United States, China, European Union, Japan, Russia, and India—have a special responsibility. For starters, forming an ad hoc coalition of the Space Six, under UN auspices, to combine their resources, and partnering with the private sector to address this problem, makes imminent sense.

The Space Six would focus singularly on the debris problem, identifying the best practices for removing orbital junk, with an open architecture to emerging space powers such as Israel and South Korea. The United States brings much to the table, with NASA’s capabilities and the Defense Department’s unrivaled Space Surveillance Network tracking of space junk. There are a host of private sector firms and start-ups in the United States, Japan, Europe, and China developing various technologies to remove space debris, a reflection of a booming private space economy. Some firms are nearly operational.

Even this urgent, commonsense problem seems a stretch politically, requiring bold diplomatic leadership in the current geopolitical milieu. The remaining space governance gap will require time—and probably a crisis—to spark agreements. By the end of this decade, the causes of these potential crises will be more readily apparent.