Are Earth’s Nations Allowed to ‘Colonise’ the Moon?

Earlier this week, India’s Space Agency launched its first unmanned spacecraft to the lunar south pole. Chandrayaan-2’s destination is the dark side of the Moon—both in the literal sense and because the region remains, for the most part, completely uncharted. And its mission, among other things, is to dig for water.

Chandrayaan-1 crashed into the south pole’s Shackleton crater in 2008, revealing the presence of ice deposits beneath the lunar surface and reviving interest in the idea of exploring, mining, and settling on the Moon. Earlier this year, China became the first nation to send a lunar rover to the far side, while countries such as the United States, Russia, Europe, South Korea, and Japan are once again starting to eye off our nearest celestial neighbour.

So what exactly are the rules of this new, not-so-final frontier? It’s been fifty years this month since Neil Armstrong and Buzz Aldrin planted a flag near the Moon’s Little West crater. But what does that actually signify?

Who owns the Moon? And who, in turn, is entitled to its riches?

“No one,” says space lawyer Frans von der Dunk. “Or, more precisely, all states jointly.”

As a Professor of Space Law at America’s University of Nebraska-Lincoln, Frans has answered the question of lunar ownership before. And he has, on multiple occasions, cited Article II of the 1967 Outer Space Treaty—to which all spacefaring nations have signed up—which prohibits “any exercise of territorial sovereignty over the Moon (or indeed any other part of outer space)”.

The Moon cannot be “colonised” in a legal sense, Frans tells VICE, because the Outer Space Treaty prohibits it. The lunar surface exists above and beyond the rules of national law, and is instead subject to something more like international law—constituting a kind of “global commons” where everyone is entitled to everything and no one country can reserve the right to occupy or annex any one specific area.

If India finds lunar water ice beneath the surface, it can claim those resources the “moment it extracts them”, Frans explains. “But it cannot ‘reserve’ them in order to decide perhaps at a later stage to actually start mining.”

The India Space Agency cannot, in other words, simply fence off a location that they know to be rich in valuable resources and minerals—the area surrounding the Shackleton Crater, say—and prohibit others from accessing it. But if they get there first, the fruits are theirs for the taking.

The idea of a second world with no borders and complete equality of entitlements seems nice, even utopian, in theory. But this “free for all” agreement also feels like a fragile truce when one imagines nations who are at competition with one another on Earth suddenly finding themselves prospecting on the same corner of the Moon. As The Monthly points out, “space commerce boosters often describe space as the new Wild West, enthusiastically comparing the Moon boom to gold rushes of times past, with little awareness that this is not the most inspiring analogy for those who are aware of the social and environmental harm… caused by resource grabs on Earth.”

When push comes to shove, and multiple parties are gunning for the same prize, how much pressure will the “rules of the Moon” be able to withstand? While claiming that there’s not likely to be territorial disputes on the Moon as long as the principles outlined in the Outer Space Treaty are adhered to, Frans notes that “of course there is pressure to change that, and there might be one or more countries in the near future trying to claim, factually or legally, something akin to ‘territory’” on the lunar surface.

He points to China’s increasing presence in the South China Sea, or Russia’s military flexing in the North Pole, as examples of the kind of soft power and territorial grabs that might eventually be rolled out on the Moon.

“The real value, however, does not lie in such ‘territory’ but in the resources,” Frans adds. “So the disputes will be more about access to resources—whether first access to a mining site or area means exclusivity to that mining site or area, for example—and what rules should further apply… to protect the environment, scientific interests in the Moon, and cultural heritage sites such as the first human footstep on the Moon.”

There are already plans by the European Space Agency and the China National Space Administration to establish a joint Moon Village sometime over the next decade, as well as plans by China to build its own lunar base. NASA, meanwhile, is angling to establish one, maybe several lunar outposts for the purposes of “a robust human exploration of deep space, scientific research, and an effort to tap water resources at the Moon”, according to documents obtained by Ars Technica. Whether the idyllic vision of a peaceful coexistence will play out once these kinds of settlements start developing is anyone’s guess.

Then, of course, there’s the matter of private enterprise. NASA has already selected nine American companies that will bid to put small landers on the Moon and deliver commercial payloads over the next 10 years—including Lockheed Martin and an organisation called Moon Express, which is owned by a group of Silicon Valley and space entrepreneurs. This “certainly complicates things in practice” when it comes to legal ownership, says Frans, although “legally speaking states are still responsible and liable” for the activities of private companies. Lockheed Martin will have to play by the rules laid out by the United States, then, which are themselves subject to the principles laid out in the Outer Space Treaty and international law.

So as more and more nations, businesses, and entrepreneurs flock to the Moon like moths to a light, what is the near future on the lunar surface going to look like? And is our current model of space law going to be able to cope with all the changes that are coming down the line?

“The chances of disputes are certainly growing, in particular over valuable resources,” says Frans. “This also means that the as-of-yet very embryonic and granular international law regime should be much more developed. For instance, we need to more clearly demarcate at what point the perfectly legal use of infrastructure would morph into the illegal colonisation, ie treating a part of the Moon as sovereign territory where everybody else has to stay out.”

As a final thought Frans notes—perhaps somewhat optimistically—that humans simply need to show some appreciation and consideration, rather than selfishness and greed, in order to secure a bright future for the Moon.

“I can only hope the common interest in a peaceful and legally secure environment would trump any selfish short-sighted interests in gains perhaps to be had by being somewhere first, and ignoring the fundamentally international character of the whole thing,” he says.

If the precedent set by Planet Earth is anything to go by, though, it seems more likely that a bad moon is on the rise.

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