Nobody Owns the Moon

To date, the only humans to touch the Moon were 12 US astronauts in the 1969–1972 Apollo program. Three nations have landed spacecraft on the Moon, all of which deployed robotic rovers, and five (including the EU) have orbited the Moon. In the next decade lunar exploration is expected to accelerate. And as more nations establish a presence on the Moon, especially a human presence, it’s a natural question to ask: Who owns the Moon?

With the Apollo 11 anniversary in the news, I’ve been getting a lot of questions about the legal significance of planting a US flag on the Moon. Other questions concerned natural resources and mining rights. A few asked about the possibility of militarizing the Moon. This is a bit off-topic for Sky Lights, but worth addressing since there seems to be some confusion about how legal concepts apply in space.

The image above shows the side of the Moon we can see from Earth (nearside), and the side that always faces away from Earth (farside). The total surface area available for exploration, colonies, mining, and scientific instruments is 38 million km2 (15 million square miles). For comparison, the Asian continent has an area of 45 million km2. Of course, some areas on the Moon are of greater interest than others, but all have potentially valuable resources.

In an effort to prevent disagreements or conflict over activities on the Moon, in space, and on other celestial bodies, the Outer Space Treaty of 1967 was drafted. Existing international law provided a template, and much of that was from Maritime Law. As of 2019, there are 109 participating nations in the treaty, and another 23 who have signed but not ratified it. The treaty contains 17 Articles and runs 2200 words, mostly “legalese”, but if you’re curious you can read the full text of the document here.

The wording of Article II is quite clear about “owning” the Moon. It states:

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.

So the planting of US flags on the Moon did not lay claim to anything. It was a purely symbolic act intended to honor the nation’s technological accomplishment. The metal plaque left behind stated “We came in peace for all mankind” and contained no language that could be construed as even remotely imperialistic.

The treaty also prohibits the deployment of nuclear (but not conventional) weapons anywhere beyond Earth’s atmosphere, including any type of WMD. It establishes liability for damages caused by a nation’s outer space activities. And it prohibits interference with any nation’s ongoing space activities. That’s a great start, but when the treaty was written only two nations had the technology to get into space: the US and the USSR. The playing field has changed since then, and a lot of that has to do with the rise of commercial space flight.

There’s a huge interest in mining the Moon and near-Earth asteroids, some of which are known to be nearly pure iron mixed with other metals. On the Moon, most of the interest is in mining water, light metals like aluminum and magnesium, or helium-3 (3He) — a potential fuel for fusion reactors. Article III has that mostly covered:

States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law  [emphasis mine]

The word “use” (in the absence of any specific exclusions) seems to imply extraction of resources as an allowed activity, which is how “international law” operates on the open seas. This works fine for asteroids, which are like “fish” in the ocean in terms of number and distribution. But on the Moon I see possible issues.

Most of the easily available water on the Moon is near its poles, and the way the treaty is written there could be problems depending which nation gets to the poles first. Article XII states:

All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.  [emphasis mine]

For the sake of argument, let’s say the US establishes a base near a polar crater that contains large amounts of water ice. They then begin extracting water as part of their “normal operations”. Although the treaty requires visitors from other nations be allowed onsite, it also mandates non-interference with “normal operations”. Bottom line: Would the US have to share that water?

Articles V and IX mandate the sharing of intentions, schedules, and discoveries, but nothing is said about natural resources. The treaty is fuzzy on that topic. This is why several forward-looking universities now offer degrees specializing in space law. There’s not much precedent in this specialty, and it’s largely unexplored territory.

Later, in 1979, the UN Office for Outer Space Affairs (UNOOSA) drafted an updated treaty removing some ambiguities and giving the UN jurisdiction over the Moon and other celestial bodies. Only 18 nations have signed it. The US, Russia, and China are among those who have not. Of note, the US recently announced an ambitious plan to return humans to the Moon by 2024. Their goal: landing at the lunar south pole. Other nations, including China and India, have expressed similar intentions. Russia, for the moment, seems to be taking a “wait and see” attitude.

Looking even further into the future, several science fiction novels have envisioned the residents of lunar colonies “seceding” from Earth and forming a sovereign nation. Some describe the surveying, subdivision, and grants of land ownership to original settlers, as happened in the American West in the 19th and 20th centuries. I have no doubt there will be a permanent human presence on the Moon by 2030. How the legal concept of space law will play out is anyone’s guess.

After I wrote this post I read an op-ed by David Sky Brody on Space.com. It echos a lot of my own thoughts, but gets into some fascinating details. If you’re a fan of hard science fiction, or speculative futurism, I highly recommend you take a look. Brody paints an informed picture of life on the Moon 75 years after Apollo 11: A Walk on Future-Moon — July 20, 2044.

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