While United States astronauts were the first to visit the Moon, this does not mean that the United States owns it. In fact, under the 1967 Outer Space Treaty no country has a unique ownership in the Moon and all nations are accorded equal rights and access. So if every country shares Earth's only natural satellite, how are rights and obligations between states determined? For example, can permanent stations or bases be built, and how are mineral or water rights allocated? Leading space law expert Professor Frans von der Dunk explains these questions and others in an informative conversation about the legal status of the Moon.
Frans von der Dunk is a professor of space law at the University of Nebraska College of Law and the Director of Black Holes, a consultancy company for space law and policy.
An Interview with Space Law Expert — Prof. Frans von der Dunk
Joel Cohen (Host): Let's talk a little bit about our closest neighbor the moon. First off, who owns it and who has a right to access it or exploit it?
Ownership of the moon
Professor Frans von der Dunk: The easy answer is, nobody owns it, or more correctly the whole community of states owns it together. Because if you say that nobody owns, it leaves open the possibility for someone to step in and say “from now on, I own this part” and that is a no-go area. The Outer Space Treaty, the most important treaty in outer space, agreed upon in 1967 between all important space faring countries, agreed that no state could ever appropriate part of the moon.
Host: Did the Outer Space Treaty call for any type of supranational authority to regulate that or is it still on the state-by-state level to make sure that they're in compliance?
Prof. von der Dunk: They didn't call for an international authority in the sense of an international organization or body. The international authority, if you will, is international law as such, but the international law consists of treaties to which sovereign states decide whether they want to adhere or not. The Outer Space Treaty is the prime example of such a treaty, and by that token they did agree on a number of rules of the road. But it's not like there is any organization whether it's the United Nations or anyone else ruling that area. And in that sense, it's basically like the high seas. It is often referred to as a global commons which means that it's open to all states as long as they comply with existing international rules to to use it, to explore it, to exploit it to the best of their abilities. And there's no single state which can stop that from happening for another state.
Can nations set up bases on the moon?
Host: So, if no one owns it and everyone owns it, practically what would that mean for a nation or a company that wanted to set up a base or a headquarters on the moon?
Prof. von der Dunk: Well that's a great question, and on the face of it, it is open. Now let me premise this by saying that there you have to make a difference between a private company and a state. The freedom of space activities like there is a freedom of activities on the high seas is open for states in principle in first instance only and private sector operators depend upon the authorization of their state whether they can enjoy that freedom as well. And if they do, the states are responsible and liable for what they do out there so in that sense there is a basic freedom for outer space activities. The problem with the exploitation of mineral resources on the moon or other celestial bodies which are legally speaking in the same basket (so obviously there are major differences between the moon and mars or a small asteroid but in legal terms they're all the same) and if you want to exploit them the only rule which is there is that it says you can't carve out a part of that area as a country and say this is ours and everybody else has to stay out, or only is allowed to get in under my permission. That is a no-go, but whether that means that you can actually allow private operators to go there and mine, that is at least politically still an open question because the outer space treaty didn't really solve that simply because it was not on the agenda in 1967.
The Moon Agreement
Host: You mentioned the oceans as an analogy. I understand that when it comes to mining in the oceans, there is a treaty that allows certain countries to apply for and receive mineral rights. I understand the United States is not a part of it, but there's no such analogous agreement on the moon, am I correct?
Prof. von der Dunk: You're absolutely correct. There was an effort to create an analogous regime back in 1979 with the Moon Agreement but that is not ratified by almost all of the major space faring countries, not just the United States but also Russia and China and all the major other ones are not party to that. So, we can safely ignore it at this stage. So there is no comparable regime, so it's a little confusing.
A Right to Access on the Moon
Host: Let's say I want to set up my headquarters on the moon and I represent Botswana. Let's take all the practical implications out and all the costs out. Would that mean that the United States could then come onto my lunar compound and set up a building right in the center of it and say, look, you don't own this land, we all do.
Prof. von der Dunk: The first part of the answer is yes, they can come in – at least duly authorized representatives of the United States can come in to basically to check and see whether Botswana is up to any violation of the requirements applicable to the moon in terms of no military establishment, no weapons, and things like that. On the other hand, Botswana has the right to take reasonable precautions and say okay you have to give us a few weeks to make sure that everything is safe here. You can't just barge in like that, again practical things put aside. The United States certainly cannot say well we're going to occupy your building. So the freedom of outer space activities means explicitly that you can build stations on the moon. You can even take reasonable precautions as I said before. You have to allow others in and the fact that you are able to build a station on the moon does not mean that you own that part of the moon forever and ever. So, if you at some point in time do not continue operations there and you let it fall apart, then after probably just a few years, there is no consensus on this yet, but that's the kind of rules that we need to develop. But maybe after a few years somebody else can come in and say well this is a ruin. This doesn't belong to anyone really anymore. Botswana has long given up on this. Now I’m entitled to build my own thing here.
Host: Is this some type of lunar squatter's rights or adverse possession?
Prof. von der Dunk: Yes, with the limitation that when we use those terms in U.S. law, of course, it brings in a whole host of quite specific obligations and rights because in the U.S., we've been working with these terms for centuries almost, and the courts have by now very precisely carved out what they mean and what they do not mean, et cetera et cetera. Of course, we can't just transplant U.S. law and U.S. jurisprudence to the moon precisely because the moon is not part of the United States. So the best we can say is that to the extent that there is a common denominator between this U.S. system and other major legal systems in the world, many of which have something somewhat similar, to the extent that there is this common denominator that would apply and actually that is reflected, if you will, by these clauses in the Outer Space Treaty, which say you can't own the land, but you're free to use it. The fact that you can't own it means that at some point in time, you can't keep others off. You can't keep everyone out forever. Now whether that means that you can continue to use that place forever and thereby de facto keep everyone out is still an open question. And if you allow me to draw a kind of a parallel in terms of satellite communications, we have now agreed that 25 years of occupying one particular orbital slot in the geostationary orbit is about right. But once that period is over, in principle, that slots should revert to the open pool. It might be that others are entitled to replace that slot so that's kind of the timelines that we are thinking about.
Safety zones on the moon
Host: In terms of some type of buffer zone, if we return to the analogy of the ocean, there are U.S. territorial waters that go out a certain number of miles. Would there be some type of buffer zone around your little space station that would be reasonable for safety reasons or reasonable for privacy reasons?
Prof. von der Dunk: Yeah reasonable is a dangerous legal term of course, and it is not mentioned in the Outer Space Treaty. It just talks about reasonable precautionary measures. So there you find actually the word “reasonable” referenced. The idea of a zone as such is not mentioned partly because of the fear that that might ultimately somehow spill over into territorial possession because it may give a sense that I own whatever is in the zone that I can completely dictate what's going on there that I treat that as part of my own territory. That was to be prevented. On the other hand, if you announce a safety zone and it is a reasonable precaution so it shouldn't be 20 miles but if it's say 150 meters, that's reasonable. And if you tell everyone if you come within that zone without prior information, without announcing that, you're acting in a way that may endanger our operations, then we feel ourselves entitled to see this as enemy activity or as a dangerous activity. And we feel entitled to act accordingly. That's the political situation where we are. This is not legally sought out so what legally becomes important is the moment that somebody officially announces a safety zone like that, how do other states react? Do they think, yes it's perfectly reasonable to announce a safety zone of half a mile just to quote a number and actually we are going to do that ourselves. Then before you know it, you have customary international law that a safety zone of half a mile is very reasonable. If, by contrast, everyone would fall over that first state and say that's ridiculous, that's a violation of Article 2 of the Outer Space Treaty and of other rules, then probably the first state must gradually withdraw unless it really wants to fight for it, which we're not hoping for in outer space obviously but that's kind of the legal tension we are talking about.