An Indian spacecraft landed on the moon this month and a pioneering Japanese lunar lander is awaiting an imminent launch. A Russian craft trying to land in the same area — the southern polar region — recently crashed, as did a private effort by a joint Japanese-United Arab Emirates group and one by several Israeli companies.
A Chinese rover has been exploring the far side of the moon for numerous years now, and China completed a lunar robotic sample return mission. The South Korean space agency is also planning its own lunar rover for the moon, as are a number of private companies.
Then there is NASA, and numerous partners, which are preparing the Artemis mission to ultimately set up a significant long-term presence on the moon, starting with a human mission in 2025 and followed by many others. The Chinese and Russian governments, are planning for a lunar settlement in 2030s as well, again with partners.
Alongside the Artemis program are numerous commercial but NASA-sponsored Commercial Lunar Payload Services missions to the moon from little-known companies such as Astrobotic Technology, Moon Express and Firefly Aerospace. Their goal is to both explore and ultimately set up an infrastructure that can support long-term stays on the moon. Some private companies also have their own lunar landing plans.
The world has never seen such a global push to land on the moon, to explore and to very explicitly learn to extract and use its resources. It is no coincidence that many upcoming missions are to the southern polar region, where earlier lunar orbital missions found substantial stores of liquid ice as well as ridges where the sun always shines — making them ideal for setting up solar panels.
“Just within the next four years, we expect to see at least 22 lunar surface missions,” Gabriel Swiney of NASA’s Office of Technology, Policy and Strategy, recently wrote. “Half of these missions will occur in the Moon’s south polar region.”
Technology to mine and otherwise use the moon is also being tested around the world and hundreds of space companies are actively working on this and related technology.
So this is not like the Apollo era or any other earlier science and exploration driven efforts to learn about the moon. Some observers liken it more to the 15th century onward when European powers began to explore, economically exploit and often dominate politically the global South and elsewhere.
What followed — with its centuries of colonial rule and environmental pillage — has been raised as a warning of what could happen on the moon if international rules of the road are not in place or are ignored.
We’re still in the very early stages of this human embrace of the moon and beyond and some treaties are indeed in place. Many see the moon (as well as asteroids and Mars) as potential and substantial boons for humankind and the American-led Artemis Accords are in place as an effort to provide those needed lunar rules of the road.
But there is also worry about the real possibility that existing national and regional competitions to exploit the moon could lead to lunar power struggles and conflict, as well as environmental degradation.
Diplomats and space policy experts around the world are working to avoid those outcomes. But some of those potentially destabilizing competitions are already visible.
The rules of the road in space were codified in 1967 with the United Nations Outer Space Treaty. It was ratified by the United States and 113 other nations and calls for peaceful and international human use of, and interactions with, space and celestial bodies.
Among its central principles is that:
- exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind
- outer space shall be free for exploration and use by all States
- outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
- the Moon and other celestial bodies shall be used exclusively for peaceful purposes
When the treaty was written and signed there was little thought given to private efforts to own and develop the moon or anything else in space, and that omission was identified and rectified in the ensuing United Nations Moon Treaty of 1979.
That second treaty made explicit that private entities of any sort had to follow the same general rules as nations. An international organization was proposed to govern the exploitation of resources “when such exploitation is about to become feasible,” as described in the treaty.
But the Moon Treaty was never ratified by any space-faring nations and only 18 nations have ratified it or acceded to it, so it has very limited effect. Our nation’s government has consistently opposed a number of provisions of the treaty, arguing that it placed burdensome constraints on nations and corporations.
Fast forward to 2020 when President Donald Trump announced the signing of the Artemis Program and Accords to return humans to the moon and to ultimately build settlements. In his announcement, Trump did not mention the Moon Treaty and the Accords clearly challenge provisions in that agreement.
At the time of the signing of the accords Trump additionally released an executive order called “Encouraging International Support for the Recovery and Use of Space Resources.” The order emphasizes that “the United States does not view outer space as a ‘global commons'” and calls the Moon Agreement “a failed attempt at constraining free enterprise.”
The Biden Administration has tamped down some of the space and lunar rhetoric of its predecessor and the Trump-era executive order no longer appears on the White House website. But some of the the views it espouses, in different forms and languages, are now heard in various forms in the public and private space communities.
For instance, in an interview aired on state television soon after a recent Russian moon lander crashed, Roscosmos chief, Yuri Borisov, pledged Russia’s on-going commitment to lunar exploration: “This is not just about the prestige of the country and the achievement of some geopolitical goals. This is also about ensuring defensive capabilities and achieving technological sovereignty.”
Despite the Luna-25 failure, the head of Russia’s space agency also declared a “new race to exploit the Moon’s resources has begun”, and there would be a potential crewed Russian-Chinese mission in the future. Of all the major space-faring nations it would appear now that Russia is least likely to actually succeed in its lunar ambitions. But Borisov was saying out loud goals that other international space leaders appear to be saying more quietly.
An exception to this bashing of the Moon Treaty is the Indian Space Research Organization. For now, at least, India one of a handful of signatory of the Moon Treaty, which limits or prohibits much of what Borisov described as his nation’s goals.
India’s recent lunar landing achievement was in the south polar region — a first — but it surely will not be the last.
Previous robotic missions have identified what could be precious water ice in deep, ever-dark sections of south polar craters. This frozen water has been put forward as a potential source of essential elements — hydrogen and oxygen. If broken apart, hydrogen in the H20 can in theory be used as rocket fuel and the oxygen can allow humans on the moon to breathe inside the settlements they say they are planning to build.
The draw of this potential lunar bonanza is unlike anything seen before in the Space Age. NASA’s Swiney wrote of the “the upcoming proliferation of actors and activities at or near the lunar south pole” that, “due to the potential close proximity of operations, NASA and other operators will face challenges never faced before.”
And this speaks to simply finding safe places to land.
The mining and splitting of H20 and prospecting for other previous or useful resources is central to the Artemis plans, and those of other space-faring nations and national groups.
How technically this might be accomplished is a work in progress. But perhaps an even greater challenge is how to govern the process of mining the moon and setting up settlements and work sites. As of today, there is no clear international consensus.
The Artemis Accords are an attempt to fill the vacuum with American leadership.
Twenty-eight nations have signed the Accords — including eight European allies, Japan, India, South Korea, the United Arab Emirates, Saudi Arabia, Israel and aspiring African and South American nations — and more are expected. These nations agree to abide by the rules of the Accords — as part of a non-binding, multilateral agreement — but their inclusion does not necessarily mean they will participate in the Artemis Mission.
The Artemis Accords are an attempt to abide by and update OST, Swiney said in an interview.
While some important space-faring nations and advocates of a more internationalist approach to moon have rejected and criticized the Accords as dominated by American goals and interests, Swiney said that he sees a real possibility that key elements of it will be “baked into” how all nations act on the moon in years and decades to come.
That result could speed exploration and development on the moon, but those elements will be differ in some significant ways from the internationalist goals envisioned in earlier interpretations of the Outer Space Treaty and the largely ignored Moon Treaty.
While the OST calls for all activities in outer space, including on the moon, to proceed “for the benefit and in the interest of all countries,” the Accords call for a more nationalist approach to potential lunar resources. Potentially valuable materials on or below the lunar surface would still belong to “humankind,” but once they are extracted they can and would belong to the extractor. Making this case, the Accords state that “the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.”
While the OST forbids occupation and national appropriation in space (and in this case, the moon), the Accords give nations or companies temporary rights to set up zones with defined, though limited, protection around their lunar activities. These “safety zones” cannot be permanent or exclusive,” Swiney said, but they would create defined work or settlement spaces that should not be entered by others without notice and consent.
For instance, he said, while “China is not signatory to the Accords, we will expect them to give due regard to our operations on the moon, just like we will for them.”
And while the Moon Treaty called for the creation of an international lunar governing agency — as exists to manage global treaties covering the oceans, Antarctica, the Arctic and more — the Accords do not. Swiney said that the speed with which lunar missions were being proposed and carried made the authors of the Accords reluctant to take the time-consuming path of writing a new international treaty with binding rules to be ratified by often slow-moving governments. He also said it was deemed unlikely that the U.S. Senate would ratify any international treaty governing the moon.
Swiney, who led the American effort to write the Artemis Accords as lead international space lawyer for the U.S. Department of State, argues that all the key provisions of the Accords are implicit in the Outer Space Treaty and necessary to rationalize on-going lunar developments.
Few dreamed of lunar settlements or mining in the 1960s when the OST was drafted, he said, and so they were not specifically addressed. The reality is that nations and corporations that spend billions to mine the moon will need to see benefits for themselves or else they probably would not move forward.
“Two new thing are going on at once ” with the Artemis Program and Artemis accords, Swiney said. “One is new activities, things that humanity has never done before. And we are also doing things in a collaborative way with a broader coalition than has ever existed before. Both pointed to a need to have some basic rules of the road.”
The Accords constitute a willingness on high government levels to act in specific, agreed upon ways, he said. The Accords require “a promise from you to take a step or two beyond the Outer Space Treaty in terms of what good behavior looks like.”
“The Outer Space Treaty is very general in what it says you have to do and has a few specifics beyond weaponization of outer space. But it really does not give you a lot of guidance. We wanted more specificity, to take the basic commitments from the Outer Space Treaty and say, okay, how do we implement those obligations.”
The Accords do not specifically address how to police the promises that governments make, but Swiney said he did not see a real threat of misbehaving “bad actors,” especially not in early years and decades.
“It’s so hard to operate on the moon now” that nations and corporations are unlikely to impinge on the work of others. “The very last thing operators need on the moon is human uncertainty and that will reduce dangers from other operations — in the immediate term at least.”
While the Accords have attracted important allies large and small, there are also vocal critics. Most prominent are the governments of Russia and China, which reject or dismiss the Accords as too America-centric. They have pledged to build their own lunar infrastructure, the International Lunar Research Station, with a settlement by the mid 2030s. They also have invited partners and so far eight nations have joined or voiced interest, including some that have signed the Artemis Accords.
None of this is surprising. The Ukraine war has eliminated any hopes of near-term Russian cooperation under Artemis — although the Russian-American International Space Station alliance continues, with strains — and Congress has banned cooperation with China in space. So as of today, the moon is headed for a future with competing and sometimes antagonistic blocks that may ultimately have different rules of the road.
A related concern is that the Accords foresee lunar exploration and exploitation on a first-come, first-serve basis.
There is no mechanism for determining which nations or private companies can set up shop in an area such as the Shackleton Crater — a large south polar region where substantial frozen water ice has been detected — though the Accords make clear that no area can be owned or exclusively controlled by one party or group of parties. But this first-come approach clearly favors the United States and its partners because of their advanced technology.
Dennis O’Brien, president of the non-profit Space Treaty Institute in California, closely follows events regarding future rules of the road on the moon and has written frequently about that for The Space Review and other publications.
In one article, he explicitly drew parallels between the current global approach to exploring the moon and exploiting its resources to the 15th century agreement between Spain and Portugal, formalized by the Catholic Church, to divide sovereignty rights in newly discovered parts of the world between the two then-imperial nations. The result, he wrote, was a long history of colonialism led by various European nations.
While the Artemis Accords specifically forbids sovereignty rights on the moon, it ratifies the evolving American (and in some ways global) position that the resources extracted by nations and companies can be privately held.
This, O’Brien argues, goes against the clear intent of the Outer Space Treaty. The Treaty’s Article 1 states: “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.”
O’Brien and his group advocate for a grand bargain, under which nations and companies could have some kind of lunar ownership but only in return for accepting responsibilities for a variety of public policy obligations — including some kind of revenue sharing. A key reason why this is needed, he wrote in an email, is that “the big battle is over how to keep resources from being depleted by whoever gets there first.”
A number of related issues were discussed recently at the United Nations’ Committee on Peaceful Uses of Outer Space (COPUOS), which hosted closed meetings of the Legal Subcommittee’s Working Group on Space Resource Activity at its headquarters in Vienna. The Working Group has just completed the first year of its five-year mandate to review the regulation of future lunar mining and industry, including possible “additional international governance instruments.”
NASA’s Swiney says there is no perceived need for re-opening the Artemis Accords to address these or other issues, and that the near and medium-term goal is to make the Accords work. But he also said there is nothing to preclude future modifications in the Accords, which after all are political agreements and not a treaty.
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