In late 2022, NASA’s Artemis 1 program is set to launch. By the time this article is published, the mission will likely be under way to the moon. Yet, it is not just a rocket Washington seeks to launch but a new space order replete with mining licences and property rights. The Artemis Accords, adopted by twenty-one other states, will set the terms of this order. And, over time, the Accords are expected to ossify into legal norms.
But not all are convinced. Notably, China and Russia, two of the three major spacefaring states, are not signatories. And some scholars object to the agreement’s allowance for lunar mineral exploitation on both legal and moral grounds. As such, it is worthwhile examining the Accords and their place within the wider domain of space law.
In space, the Outer Space Treaty of 1967 (OST) is equivalent to Magna Carta. Its acceptance is near-universal. As such, the OST effectively sets the constitutional boundaries for space law. The OST ensures the moon remains free from sovereign territorial claims. Rather, states exercise sovereignty over vehicles and personnel registered in their jurisdiction. But the document is silent on mining rights. And, for decades, debate has raged over whether lunar mineral exploitation is permitted.
One attempt to resolve this issue was the Moon Agreement of 1979. It explicitly proscribed the conversion of subsoil resources into private property. Whatever exploitation was to occur would be regulated by an “international regime”, the specifics of which would be determined later.
Unsurprisingly, no major spacefaring state signed it. Washington, in particular, objected to the term “common heritage of mankind”, as American policymakers believed the idea the moon was a commons placed undue constraints on commercial activity.
Subsequent American legislation expressly repudiated the Moon Agreement. For instance, the Commercial Space Launch Competitiveness Act of 2015 granted commercial entities property rights in extracted moon resources. While at the passing of NASA’s 2018 budget, Senator Ted Cruz noted approvingly his belief the first trillionaire would be made in space. Any residual ambiguity was buried by a 2020 Trump Administration executive order rejecting the Moon Agreement and its claim the moon is a “global commons”.
The Artemis Accords are thus an attempt to bind other states to Washington’s viewpoint. Section 10 requires signatories to affirm that resource extraction does not amount to a sovereign claim proscribed by the OST. Meanwhile, section 11 provides for “safety zones” where states can mine minerals without interference from others.
A question naturally arises how a state can effectively grant itself a mining licence without asserting sovereignty over the subject land. This is especially true when the property rights thereby obtained are affected not by international law but an Act of US Congress. And though there are differences between claims over land and subsoil minerals, some legal experts believe all lunar property rights are inconsistent with the OST.
Chinese officials have gone further, accusing Washington of enclosure. That is, the capture and commodification of the commons for private benefit.
The Accords pre-empt such accusations by emphasising the impermanence of safety zones. Meanwhile, others argue that moon mining is no different to fishing in international waters. Yet, both rationales fall flat since they amount to enclosure in practice.
The effect of Washington’s approach has been to instigate a scramble for moon resources. Both Beijing and Moscow are introducing their own lunar property rights regimes in response. Doubtless, lunar mining may yield benefits. And processes like in-situ resource utilisation could expand the horizons of space exploration.
Property rights, however, are another matter. And while the Artemis Accords pay lip service to environmental protections, this creates tension with the document’s incentive structure, which prioritises profit-seeking. Unfortunately, there is scant historical evidence this tension will be resolved in favour of the environment.
The Moon Agreement and its claim the moon is the “common heritage of mankind” is thus worth revisiting. As is the view of Jean-Jacques Rousseau, who stated that the fruits of the earth belong to everyone and the earth itself to no one. Rousseau’s advice went unheeded on earth. But it may not be too late for the moon.
Antony Murrell is a fourth-year student at the University of New South Wales, studying a Bachelor of Arts (History/Spanish and Latin American Studies) and a Bachelor of Laws. Antony is an intern at the Australian Institute of International Affairs NSW.