The Artemis Moon base project is legally dubious

While NASA plans to launch four astronauts on Wednesday as part of its Artemis II mission, the race to return to the Moon resumes. The current mission will see astronauts aboard the Orion capsule travel around the Moon before returning to Earth in 10 days. They will test hardware and systems that could soon see Americans stand on the Moon for the first time in more than 50 years as part of the Artemis IV mission planned for 2028. NASA is not yet ready to land humans on the Moon, but that is the goal for the next five years: not only getting people to the Moon, but also establishing a lasting human presence on its surface.

This is NASA’s selling point for Artemis, compared to the Apollo missions of the 1960s and 1970s: we won’t visit the Moon for a few days, but rather inhabit it for a long time. The exact duration is not yet clear, but the idea is to build a lunar base that would allow astronauts to live on the lunar surface for weeks or even months.

This makes logistics much more complicated, as astronauts will not be able to take with them all the supplies and resources they would need. Instead, they should use the limited resources that exist on the Moon, in a process called in situ resource utilization. Rather than carrying a huge amount of water for the trip from Earth, for example, we’ll simply fetch ice from the Moon and melt it to use instead. Simple, right?

This is really not the case. There is science. And there is the law.

The Moon’s environment is harsh and inhospitable, with dangerous space radiation, a dusty material called regolith that is sharp like glass and destroys equipment, and a different level of gravity to deal with. Although less fanciful than the wild Mars colonization plans promised by SpaceX CEO Elon Musk, NASA’s goal of establishing a base on the Moon by 2030 remains extremely optimistic. Throughout its message on Artemis, NASA emphasized the importance of identifying and extracting the Moon’s resources, including water for fuel, helium-3 for energy, and rare earth elements like scandium that are used in electronics. It is difficult to know the abundance of these resources until they are more comprehensively mapped and assessed, but there is at least some potential value, as they are necessary to sustain habitation on the Moon. And that’s the rationale behind much of Artemis: resources are needed to support a moon base, so we need to build a moon base to research them.

The agency even described these efforts as a “lunar gold rush.” But it highlights a problem with Artemis that cannot be solved by developing new technologies: Some experts say extracting resources from the Moon is a violation of international law.

There isn’t a huge amount of international law applicable to space exploration, but what there is is very clear on one point: the Moon doesn’t belong to anyone. The Outer Space Treaty (which was signed almost 60 years ago but still forms the main basis of international law in space today, if you can believe it) is very explicit regarding the principle of non-appropriation, meaning that nations cannot claim sovereignty over any body in space. But what about resource extraction? Here we enter delicate territory.

“The United States considers resource extraction not appropriation,” says Cassandra Steer, 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 an incorrect interpretation of the Outer Space Treaty. You are trying to create a loophole.” After all, if a nation started extracting resources from territory to which it has no rights on Earth today, it would pose some legal problems.

The United States has taken a tactical approach to this issue, using an agreement called the Artemis Accords. It is not an international treaty, but rather an agreement signed by over 60 countries regarding the adoption of high-level principles regarding space exploration and the Moon in particular. Many of these principles constitute sound and reasonable approaches to space exploration, covering topics such as sharing scientific data, considering safety and emergency procedures, and respecting the peaceful use of space.

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

This doesn’t exactly mean that whoever gets to the Moon first and claims part of it now owns it, but it implicitly means that whoever starts activities such as research or mining in a certain lunar region can now extract resources from that region and other countries cannot stop them. It doesn’t own a piece of the Moon, but there is priority access by drilling, scraping and occupying a strategic location for its potential value.

It is difficult not to draw a parallel between this approach and the history of land grabs in the American West in the 19th century, particularly with regard to access to key resources like water. “I think the Artemis Accords could open the door to these kinds of claims for access to the Moon,” says Rebecca Boyle, a journalist and author of a book on the subject, Our Moon. “The agreements state that safe zones must be relevant to ongoing activities, but again, I think a creative lawyer or a clever legal argument could lead to a situation where someone who arrives at a location first uses the safe zone rule to claim what is there.”

The smart move by the United States was to incorporate the agreements into the Artemis program, so countries wanting to get involved in Artemis had to sign the document. With the joining of a handful of key players like Canada, Japan, Australia, the United Arab Emirates and the United Kingdom, many other countries, including France, Israel, Saudi Arabia, India and Germany, followed suit.

“And so, it was a bit of a power move by the United States to say that if you want to participate in our program, you have to agree with our interpretation of international law. It forces what we call legal opinion in international law,” says Steer. The strength of this consensus emanating from so many countries is that, while resource extraction is tolerated in practice, the original intent of the treaty can actually be overturned by widely accepted interpretation.

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

The real elephant in this legal dispute is China, which has not signed the Artemis Accords and is on the verge of sending its own astronauts to the Moon, perhaps even before the United States. China and the United States have virtually no relationship when it comes to space activities, but China has built its own international cooperations 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 is planning to build its own lunar base with Russia, called the International Lunar Research Station, and the United States is aggressively pushing its lunar program to try to beat its rivals.

“The multi-trillion dollar question is: why go to the Moon? And that is, in my opinion, purely geopolitical,” Steer says. This is certainly what motivated the United States during the last space race, when the Cold War was in full swing and the Soviet Union’s race to the Moon was not only about political power but also an attempt to demonstrate who had the superior political ideology. Today, in the era of “America First” Trumpism, the United States is trying to once again prove its power and capabilities, but nationalist rhetoric fails to capture the reality of space exploration that it now depends on international partnerships and cross-border cooperation.

Today, it is not just prestige that is at stake, but also access to space resources, from control of cislunar orbits and lunar locations to control of materials needed for further exploration of the Moon, such as ice or helium-3. After all, NASA has been particularly circular in its justifications for Artemis: We need to send astronauts to the Moon to ensure access to ice, because we need access to water to support human exploration. There are potential scientific justifications for a mission to the Moon, ranging from learning about the formation of the solar system to using the Moon as a basis for building a powerful telescope, but these have not been well articulated or widely promoted by NASA.

“The real, more hidden justification is who gets political dominance,” Steer says. “Space is just another area where geopolitics plays out. It’s no different than the race for AI, it’s no different than the competition over other resources, around oil, around water… It’s another area where the United States is grasping at straws to remain the sole dominant power, and discovering that in reality it can’t.”