The Artemis Moon base project is legally dubious

The race to return to the Moon has begun again, with NASA planning to launch four astronauts on its Artemis II mission on Wednesday. The current mission will see astronauts aboard the Orion capsule travel around the moon before returning to Earth in 10 days’ time. They will test hardware and systems that could see Americans stand on the Moon for the first time in more than 50 years in the Artemis IV mission, scheduled for 2028. NASA is not ready to land people on the Moon yet, but the goal for the next five years is: not only to get people to the Moon but to establish a long-term human presence on its surface.

Compared to the Apollo missions of the 1960s and 70s, this is Artemis’ selling point to NASA – we will not just visit the Moon for a few days, but will be there for a long time. Exactly how long is still unclear, but the idea is to build a moon base that would allow astronauts to stay on the moon’s surface for weeks or months at a time.

This makes logistics more complicated, as astronauts will not be able to bring with them all the supplies and resources they will need. Instead, they will need to use the limited resources available on the Moon in a process called in-situ resource utilization. For example, instead of bringing huge amounts of water on the trip from Earth, we’d just go and find some ice on the Moon and melt that to use instead. Simple, right?

It really isn’t. There is science. And there is law.

The Moon’s environment is harsh and inhospitable, with dangerous space radiation, dusty material called regolith that is as sharp as glass and destroys equipment, and a varying level of gravity to contend with. Although less imaginative than the wild Mars colonization plans promised by SpaceX CEO Elon Musk, NASA’s goal of establishing a base on the Moon by 2030 is still extremely optimistic. Throughout its message on Artemis, NASA has stressed the importance of identifying and extracting resources from the Moon, including water for fuel, helium-3 for energy and rare Earth elements such as scandium used in electronics. It is hard to know how abundant these resources are until they have been fully mapped and evaluated, but they at least have potential value, as they are essential to maintaining habitability on the Moon. And that’s the rationale behind Artemis: resources are needed to support a moon base, so we need to build moon bases to explore them.

The agency has also described these efforts as a “lunar gold rush”. But it points to a problem with Artemis that can’t be solved by developing new technologies: Some experts say extracting resources from the moon violates international law.

There isn’t much international law applicable to space exploration, but what there is is very clear in one respect: no one owns the Moon. The Outer Space Treaty (which was signed almost 60 years ago but is still the mainstay of international law in space today, if you can believe it) is very clear about the principle of non-appropriation, meaning that nations cannot claim sovereignty over any body in space. But what about resource extraction? There, we reach sticky territory.

“The US recognizes that resource extraction is not appropriation,” says Cassandra Steer, a space law expert and founder of the Australasian Center for Space Governance. Many international space lawyers, including Steer, have argued that this is illegal. “This is a misinterpretation of the Outer Space Treaty. You’re trying to create a loophole.” After all, if a nation starts digging up resources from an area on Earth that it does not currently claim, it will create some legal problems.

The US has been strategic in its approach to this issue, through the use of an agreement called the Artemis Accords. It is not an international treaty, but an agreement signed by more than 60 countries regarding the adoption of high-level principles regarding space exploration and the Moon in particular. Many of these principles are solid, reasonable approaches to space exploration, including topics such as sharing scientific data, considering safety and emergency procedures, and adhering to the peaceful uses of space.

But the document also includes sections specifically allowing the extraction and use of space resources, stating that this does not conflict with the principle of non-appropriation, and allows specific nations to establish “safety zones” around their areas of lunar activity where other nations cannot interfere.

This does not at all mean that whoever reaches the Moon first and claims a portion of it is now its owner, rather it is clearly saying that whoever starts activities like research or mining in a certain lunar area now gets a chance to extract resources from that area and other countries cannot stop them. It doesn’t own a piece of the moon, but is getting priority access to it by drilling, scraping and occupying a strategic location for its potential value.

It is difficult not to draw parallels between this approach and the history of land grabs throughout the American West in the 19th century, especially with respect to access to key resources such as water. “I think the Artemis agreement could open the door to these kinds of entry claims on the Moon,” says Rebecca Boyle, a journalist and author of a book on the subject. our moon. “The agreement states that the security zone must be relevant to ongoing activities, but again, I think a creative lawyer or a good legal argument can create a situation where someone who reaches a location first uses the security zone rule to lay claim to whatever is there.”

The smart move on the US side was to integrate the agreement into the Artemis program, so countries that wanted to join Artemis had to sign the document. Many other countries followed suit, including France, Israel, Saudi Arabia, India and Germany, with some major players like Canada, Japan, Australia, UAE and UK signing on.

“And so, it was a strong weapon of the United States to say that if you want to join our program, you have to agree with our interpretation of international law. This is what we call coercion opinion jurisprudence in international law,” Steer explains. The strength of this consensus of so many countries is that, if resource extraction is tolerated in practice, the original intent of the treaty can be overruled by a widely accepted interpretation.

Steyer summed up NASA’s approach bluntly: “You’re just trying to rewrite the treaty, and somehow you’ve convinced 60 countries to do it with you.”

The real elephant in this legal tussle is China, which has not signed the Artemis Agreement and is probably preparing to send its astronauts to the Moon even before the US gets there. There are practically no ties between China and the US when it comes to space activities, but China has been building its own international cooperation for its lunar program, including signing an agreement with Russia and carrying payloads from various European countries and Saudi Arabia on its lunar rovers. China plans to build its own moon base with Russia called the International Lunar Research Station, and the US is aggressively pursuing its own moon program to try to outdo its rivals.

“The trillion-dollar question is why go to the Moon? And that, in my view, is entirely geopolitical,” says Steer. This is certainly what motivated the US during the last space race, when the Cold War was in full swing and getting the Soviet Union to the Moon was not only a matter of political power, but also an attempt to demonstrate who had the better political ideology. Now, in the era of America First Trumpism, the US is once again attempting to prove its power and capability, but nationalist rhetoric has failed to capture the reality of space exploration, meaning it is now dependent on international partnerships and cross-border cooperation.

Today, not only prestige is at stake, but also access to space resources, ranging from controlling cislunar orbits and lunar locations to controlling materials needed for further exploration of the Moon, such as ice or helium-3. After all, NASA has been remarkably circular in its rationale for Artemis: We need to send astronauts to the Moon to have safe access to ice, just as we need access to water to support human exploration. There are potential scientific justifications for Moon missions, ranging from learning about the formation of the Solar System to using the Moon as a base for building a powerful telescope, but these have not been well-articulated or widely publicized by NASA.

“The real justification, the hidden justification, is who gets political dominance,” Steer says. “Space is just another area where geopolitics is at play. It’s no different from the AI ​​race, it’s no different from the competition around other resources, oil, water… It’s another area where the US is grasping at straws to remain the single dominant power, and finding out that it really can’t do that.”