Lunar laws: can anyone own the Moon?

Can any nation - or commercial enterprise - lay claim to the Moon? Chris spoke with Michelle Hanlon, executive director at the Center for Air and Space Law at the University of Mississippi.

Michelle - Unlike what people may think - that space is somehow some wild west, and if you get out there, you can evade all laws - I'm sorry to say that laws will follow you into space. We actually have an outer space treaty, which was negotiated during the first space race in the 1950's and 60's, which has an article in it which says that no nation can claim territory on the Moon. So when the United States planted their flag on the moon in the Apollo missions, it wasn't staking a claim. It was simply saying 'We were here.' And so it's a very powerful provision of a treaty to which Russia, China, India and the United States are all parties to. So those nations can't go up and say, 'this is mine, you can't come in.' As lawyers, we like to interpret things. There's some questions about whether that applies to individuals and people argue differently about whether Elon Musk or Jeff Bezos can claim property on the moon or anybody else for that matter. But that's something that's still under interpretation.

Chris - So other than the technological constraints, what would stop a billionaire from going out there and then hammering a flag in and saying, 'I own that bit.'

Michelle - Absolutely nothing. There's no question. If somebody makes it to the Moon before one of these countries that is bound by this treaty, they can make any kind of claim they want. The question is, what is the value? We're a long way away from anybody being able to go to the Moon and saying, 'This is mine. Don't come in' and survive. They need to be tethered to a country and that country will hopefully reign them in.

Chris - What does that mean in terms of exploitation, though? You could go to the Moon and not say you own it, but you could still remove stuff. Say, for example, some kind of lucrative raw material or some kind of infrastructure were placed there, the person doesn't have to own the patch of the Moon to have that there, and they could nevertheless make money from it. So is that covered in the provisions of the treaty.

Michelle - So that is really interesting because that is a question of interpretation of the treaty. The United States announced in 2015, President Obama signed a law that says, we interpret the treaty to say anybody - a country or a nation, an individual, a company - can extract a resource and then do whatever they want with it. They can do scientific analysis, they can sell it. As part of the Artemis Accords, which are an agreement among nations about how they're going to act in space, a sort of follow up to the outer space treaty, those nations, only 28 of them have signed on to the Artemis Accords, all say, 'yes, you can extract the resource and do whatever you want with it. And, incidentally, India is a signatory of the Artemis Accords, as was mentioned before, and China is not.

Chris - And if someone goes and decides to transgress these rules, notwithstanding what you said about them being associated with a country, but just say they did. Has the treaty got teeth that mean it could do something about that? Or would we just have to stand on the sidelines and say, 'well, that's jolly unspiriting of you.'

Michelle - That is a great way to put it. And, unfortunately, in public international law, not a lot of treaties have teeth. Hence, we're witnessing the Russian invasion of Ukraine. There is nothing that we can do. We can't send up our Space Force. And we certainly don't want that to happen anyway. We really have to work now from the ground up to try and make sure that doesn't happen because it's going to be a lot more difficult to deal with if it does happen.

Chris - I was so pleased when we heard you were going to come on the programme because I was amazed that there's a big enough field for it to support a research centre and so on. Looking at this very topic, is this a rapidly growing and emerging area of international law?

Michelle - It's incredible. Space needs lawyers like you wouldn't believe. If you think about it, we have these nice rules which say you can't claim property in space, but we have this rule which seems to contradict it, right? And then we have this idea of having due regard for each other. That's how we're supposed to deal with each other in space. And what does that mean? What we need lawyers for isn't to gum up the works and start suing each other because that would be a disaster. What we want lawyers for is to start making sure we all understand all this language the same way, and that we can try and start to create custom and build traditions and make sure people are doing things responsibly and sustainably. And, incidentally, our centre here in Mississippi has grown. We used to have just three students, now we have more than 40. This is going to be big business, especially when you think about space tourism and all of the things we do with space satellites. So, if you have any interest, space needs you!

Chris - Does your jurisdiction, as it were, extend beyond the moon? Are you looking at everywhere in the solar system, including Mars?

Michelle - Absolutely. We are all going to be exploring all of space and as humans, hopefully, we will have the same code of honour as we do so.