The Moon.  Our pale guardian of the night.  She has guided the Earth since its existence.  The tides and animal kingdom follow her, the great sciences have tried to capture her essence, and the great artists have endeavored to define her beauty. The Moon has always been a far away goal, a place humans always wished they could reach.  Forty-six years ago, we made that dream a reality.

By Robert Graves

Earth’s satellite orbits a short 4 day ride away, which is amazing considering a modern Trans-Atlantic cruise is about the same time.  While it has been visited by several nations, only the United States has set foot on its surface.

The Soviet Union first sent Luna to the Moon in 1959, and since 1972 only unmanned spacecraft have visited.  Since the fall of the Soviet Union, the Russian space program has fractured and reunited in various forms.  The Russians helped realize the International Space Station project and current provide shuttle service for the United States to space. The Russians have also partnered with India and their Chandrayaan project for future lunar missions.

India’s Chandrayaan project literally got off the ground in 2008 where it made its way into lunar orbit.  In 2009, its lunar impact probe was fired at the Moon’s south pole in an effort to cause a debris cloud for analysis in an attempt to find water.  By 2018, India plans to have a rover on the Moon and a manned mission by 2021.

China already has a rover on the Moon, called Chang’e 3.  The Chang’e program is named for the Chinese Goddess of the Moon.  Yutu, the rover, received its name from an online poll.  Yutu is the Jade Rabbit who lives on the Moon with the Goddess.  In 2013 Yutu landed on the Moon, and while it suffered mechanical problems, it still stays in contact with the Earth.  In 2020, Change’4 will bring a second rover to the Moon involving private firms  for the first time.  China expects to have a man on the Moon by 2024, and the Chinese goals include having a long term lunar base. Mars missions are also included in these goals, with an expected manned mission by 2040.

In 1990, Japan became the third country to place a spacecraft into lunar orbit with its Hiten spacecraft. In 2007, Japan launched the Selene lunar orbiter fitted with a high-definition video camera that obtained lunar geophysics data and took the first high-definition movies from beyond Earth orbit.

The European Space Agency is the organization of various European space programs to ensure Europe’s access to outer space. The European spacecraft SMART-1, an ion-propelled spacecraft, was in lunar orbit in 2004 until its lunar impact in 2006, and made the first detailed survey of chemical elements on the lunar surface.  The European Space Agency does much for the scientific advancement of space knowledge.  It’s goals are less about space colonization and more towards space cooperation.  The ESA works jointly with most other space programs and also with nations interested in creating and advancing their own programs.  These nations include Argentina, Brazil, China, India, Russia, and Turkey.

There is a common acronym in politics called NIMBY, which stands for Not In My Back Yard.  This term is common when discussing public works projects.  Trains, highways, and landfills are all important, but nobody wants them in their back yard.   The Moon does not reside in anyones backyard.  In fact, its currently outside of any and all jurisdiction.  Any company or state actor that reaches the Moon has carte blanche on its activities there.  Whats to stop a Moon mine?   On Earth a mining company is restricted by decades of restrictions and laws that help maintain a safe environment.  Do these laws exist on the Moon?  Not in any enforceable way.  In fact there is nothing keeping the Moon from becoming a hazardous waste dumping ground at all.

And what of the miners?  The scientists and other inhabitants of the Moon might be subject to any rules of the entities that employ them, but there is nothing stopping those same entities from taking advantage of their employees.  At least one space capable country has a modern history of human rights violations that current governments cant or wont do anything about.  Several nations across the globe still employee slave labor to build their cities and monuments.  What is to stop these same nations and non state actors from employing these same acts in space?  And how would we even know?

What territorial claims are valid and invalid and who enforces those claims? There is no Earth government, but the U.N. does have an “ask us first” policy. However, the U.N. is not all inclusive and often unable to enforce its policies.  The current reality is that claiming the Moon is about possession – who gets there first and who stays longest.

Non state actors, specifically corporations are a big problem here on Earth.  We have no reason to expect they will behave any different on the Moon.  One company, the Shackleton Energy Company, not only wants to mine the Moon they want to place gas stations in orbit as well.  The Texas company was formed in 2007 as a C- Corporation, a type of corporation that bends traditional tax rules.

The company states that by 2021 they wish to have an operating mine on the Moon in which to create propellants.  Shachleton would then sell these propellants in orbit at their propellant stations. Given the companies operations will be extraterrestrial, The Shackleton Energy Company could choose to operate outside of its Earthly obligations.  Working conditions for its people in space,  environmental conditions of the Moon and Low Earth Orbit, and even tax and finance obligations would have no oversight.

A Russian corporation, Lin Industrial, is planning on building a lunar base in order to mine minerals as well. They plan to be on the Moon in 10 years.

The Russians have even bigger plans.  President Putin calls for permanent Russians on the Moon. Territorial claims for Putin follow along with his recent military actions in Georgia and Ukraine.  A permanent Russian extension on the Moon with forceful precedence is a troubling idea.

While the Chinese have not yet landed a man on the Moon, they have soft landed equipment.  China’s actions on Earth are one of resource hoarding.  While its true they are a growing energy consumer and require resources to expand, its also true that they do so with little regard to surrounding nations.  In outer Mongolia, Chinese mines operate with little regard for the Mongolian state.  In Burma, Chinese plans to flood a populated area by building a hydroelectric dam have come to a halt as the Burmese have resisted.  China’s ever expanding claims into the South China Sea have come at odds from all its neighboring countries.  What will be the outcome of a Chinese asserted claim of lunar mineral rights?

India’s space program has been moving at an exceptional pace, and who can blame them?  India is a savvy nation and space programs are a huge source of national pride.  But India is saddled with duality – any surge of national pride is met by its brothers in Pakistan with fear.  Indo-Pak relations have been tumultuous since the beginning.  India’s ever expanding influence into space will likely be met the same way its influence in Afghanistan was met.  The Pakistani world will continue to feel smaller under the shadow of its larger neighbor, and often Pakistan lashes out with violent force.  Indians on the Moon could raise Pakistani paranoia to a fever pitch.

The problem for the Moon is one of distance.  The Moon is far away from the reach of the Earth.  The Moon’s best defense comes from Earth governments ability to influence state and non state actors.

Attempts have been made already to solve future issues of space politics.  The earliest was the National Aeronautics and Space Act enacted by the United States Congress in 1958. It says: “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind.”

While the United States is a front runner in space exploration, it does not have the jurisdiction to enforce its laws or principles on other nations.  The United Nations created the Committee on the Peaceful Uses of Outer Space (COPUOS) to standardize space law and discuss science and technology.  COPUOS has held several conventions, resulting in several treaties.  The two treaties important to this discussion are the Outer Space Treaty and Moon treaty.

The Outer Space Treaty forms the basis for Space Law. It was put into force in 1967 and has since been ratified by 103 nations.  The Outer Space Treaty was formed during the Cold War, and therefore explicitly bans the placing of nuclear weapons in space or on any celestial body.  It also prohibits military bases or maneuvers in space. Most importantly, it forbids any government from territorial claims of celestial bodies calling them “the common heritage of mankind”.

To further the protection of the Moon, the Moon Treaty was enacted. The Moon Treaty gives jurisdiction of the Moon to the international community of nations.  The Moon Treaty allows all nations the ability to conduct research on the Moon, while protecting it from environmental impact and territorial claims.  The treaty also gives rules on the extraction and allocation of lunar resources.  While this treaty has been around since 1984, only 16 nations have ratified it.  Lobbying groups, such as the now defunct L5 society, convinced the United States not to sign.

Many of these treaties and Space Law itself are rooted in The Law of the Sea, which defines guidelines for usage and protection of Earth’s Oceans.  We do however have another practical example of law that could be used for the Moon. And that is the Antarctic Treaty System.  The Articles of the Antarctic Treaty include that Antarctica is to be kept free to all signatories and free of nuclear waste.  They include a mechanism of deterrence by signatories and self regulation overseen by the International Court of Justice, the legal arm of the United Nations.

While both Moon Treaty and Antarctic Treaty have similarities, they differ in 2 key ways.  First the Antarctic Treaty specifically defines resource and conservation laws while the Moon Treaty leaves those definitions up to the United Nations.  Secondly, the Moon Treaty incorporates current international law, giving protection to any citizens in space and ensuring human rights violations don’t occur.  Both of these issues are important to our future in space.

Space Law seems like the sort of thing that is a future problem, and it certainly pertains to our future in space.  However all of the goals by actors and non state actors listed above are expected to be achieved in the next 5 to 10 years.  Now is the time to be clear.  Retroactively adding Moon protection laws is not the way to go.  Societies on Earth have already fought hard won battles on human rights and environmental protection.  Transferring those ideals to future human endeavors should be a no-brainer.  But we also need to make sure these laws are enforceable.  The United Nations and International Court of Justice need demonstrative force prior to any Moon colonization.  Space fairing nations need to ratify both the Outer Space Treaty and Moon Treaty and those signatory nations much hold each other accountable, including the actions of non state actors operating within these nations.

The Moon Treaty needs more teeth than it currently has.  We are in the midst of a lunar “gold rush”, but we can do better.  Instead of treating the Moon as the wild west, we should treat it with the reverence that it once held to us, before its value was monetary.  We have the framework to accomplish this task, all we need is the will to follow through.