In this final part of my miniseries on Artemis and the Moon, I am striving for optimism. Because we could all use a little in the world right now, and because I do actually return to optimism often, as an antidote to my own skepticism. I have to, or there would be no point in doing the work I do.
Just a heads up: From now on, I will be writing this newsletter bi-weekly. I have so much to share with you, and it’s been exciting that more people are subscribing each week, but in order to make sure this is sustainable, I need to shift from weekly to every two weeks. That might also leave a bit more room in your inbox each weekend ;-)
I find myself looking up at the Moon many times a month and thinking “we’re coming back soon. I’m sorry if we f*ck it up.” But occasionally I find myself thinking “wouldn’t it be amazing if the Moon turned out to be the place where we figure out real collaboration?”
My last newsletter was a bit of a rant about the consequences of the breakup between Musk and Trump, and may have seemed like a distraction from my Moon musings. But I meant every word I wrote about the beginning of the end of US dominance in space, and the opportunity this provides for true international collaboration…if enough players see it that way. The American century has ended, we are in a multipolar era, and as countries around the world figure out in real time what this means, we have an opportunity to accelerate cooperation. On Earth, in space, and on the Moon.
Extractivism versus benefit sharing
The challenge is one of core values.
Political philosopher John Locke wrote about property in 1689. His starting assumption was that everything that is found in nature is a commons, but that humans can appropriate things when we mix our labour with it. Because, in the efforts of doing so, one somehow changes the thing, it becomes one’s own to the exclusion of others.
Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. — John Locke, Second Treatise of Government, Chapter V, paragraph 27
This is the basis of property rights today in most Western legal traditions.
It’s also the basis of the legislation adopted by Luxembourg, the UAE and the US, and of the Artemis Accords. In “Artemis and the Moon: Part 3” I discussed how these instruments all interpret the Outer Space Treaty prohibition on appropriation as nonetheless allowing for appropriation of resources. By extracting space resources, a person or a company can claim ownership of them. The investment into technology development, the risks and costs involved in prospecting for, and extracting, a part of the Moon/an asteroid/whatever “celestial body” has been mined, all justifies new ownership over the thing that could not previously be owned.
In fact, this notion of being able to claim ownership where there was none before goes back further than Locke, to the Roman legal concept res nullius - a thing belonging to nobody. A thing therefore ready to be acquired by anyone through appropriation. A wild animal was often given as an example, or an abandoned building, or an unoccupied piece of land. No rights existed over it when it was res nullius, but it was up for grabs for new, exclusive property rights.
It must not be forgotten that the notion of res nullius was used to justify colonisation of lands that were very much occupied by Indigenous peoples. Indeed, terra nullius was the legal myth use by the English crown, to assert that Australia was unclaimed, unoccupied, because the Indigenous Australians had not “mixed their labour” with the lands in ways that Europeans recognised. No permanent fixtures or fences. Therefore ripe for the taking, with Lockean justification.
The objection to this claim that these lands were up for grabs is very real. Res nullius denies any intrinsic value in the state of nature, and assumes property rights are an end state, which things are just waiting to enter once “discovered” or claimed. It denies the right a wild animal may have to remain wild. It denies the value unoccupied land may have in remaining unoccupied - the very reason many countries have national parks, for example. It also applies a singular cultural evaluation of what amounts to property and who can claim it, to the benefit of those claiming it, and explicitly denies any alternative world view.
Res nullius is also a handy justification for extractivism: the centuries old practice of foreign powers extracting natural resources in colonised lands, either for their own use directly, or for export and profit. Whenever foreign powers have had superior technologies, they have appropriated resources that had not yet been “claimed” by locals, sometimes with direct exploitation of local labour. The value extracted then contributed to the expansion of those foreign powers. This has continued into the 21st century.
I’ve heard some people dismiss this by saying “but if there aren’t any living beings on the Moon, it doesn’t matter!” It does matter if we consider that res nullius and terra nullius are methods to justify ownership by denying that any previous or common right might exist. It does matter when we realise this claim is necessarily to the exclusion of others (whether they were there before or may come later). It does matter if we consider the possibility that things in a state of nature may have an intrinsic value. It does matter if we consider the range of relationships different cultures around the world have with the Moon, none of which are exclusive of others, and some of which may be impacted by lunar property claims. It also matters if we consider that traditional colonial powers are the ones likely to dominate the lunar economy in the near future, to the exclusion of exactly the same countries that have been colonised on Earth.
And it does matter if we follow the logic and guarantees of the Outer Space Treaty, which states in Article I that the Moon and all other celestial bodies are “the province of all [hu]mankind”. This was put in place precisely to prevent dominant powers from denying other actors a right of access to space. And Article II lays out that there shall be no national appropriation, by claims of sovereignty nor by any other means, precisely to prevent a competition of real estate between dominant players to the exclusion of others.
The Outer Space Treaty put in place a regime of res communis - the Roman legal notion that there are some things that belong to everyone rather than to no-one. They cannot be claimed as exclusive property. They are commons. The Moon and all other celestial bodies belong to us all.
This is what the 1979 Moon Agreement set out to further clarify. Because the Moon is a res communis, any lunar mining activities would have to come under a legal regime that ensures some form of benefit sharing. It was not intended to be a regime to limit access to the Moon, nor even limit mining as such, but rather to ensure no exclusive property rights would emerge to the exclusion of others. If the Moon belongs to us all, we all should benefit from lunar activities. This is the “common heritage of [hu]mankind” principle.
In a similar vein, the 1996 UN General Assembly Space Benefits Declaration was an attempt by non-aligned countries to highlight that everyone has a right to access and benefit from space. The declaration pointed out there was already a dominance of certain players, in effect denying other nations and peoples an equal access to space. It also pointed out the inequality in the benefits from technologies in space.
But given that the vast majority of nations have refused to sign the Moon Agreement, and given the imminence of these extraction activities on the Moon, maybe the debate shouldn’t focus on who benefits from potential new energy sources and resources, whether directly or economically. Maybe the debate should focus more on there being a right to have a say in how the Moon and her environment will be managed. Maybe that’s the point of it being a commons.
Bridging the divide
One of the biggest diplomatic challenges right now is how to bring China, Russia and the US to the table together. Some point to the International Space Station as a model. For decades it has been the flagship of collaboration between Canada, the European Space Agency, Japan, Russia and the US. Indeed, Russia provided the only human spaceflight programme for many years before SpaceX proved it could safely transport humans to the ISS. However, the ISS has also been subject to geopolitical tussles, with both Russia and the the US alternately threatening to end their funding at various points over the last several years.
As it nears the end of its programmatic life, the ISS has certainly demonstrated that a single, focused project can be achieved in collaboration. But this is vastly different from a competition for lunar real estate, with a diversity in operational standards. Working together to build one thing is not a super helpful model for how to cooperate when competing to build different things in the same, prime spots on the Moon.
Since the major competitors are the Sino-Russian International Lunar Research Station (ILRS) and the US-led Artemis programme, the concern is that it will be too difficult to bring these players to agreement on standards and equal accessibility. Geopolitics would dictate that this is near impossible right now.
At the same time, it’s not really clear whether values really diverge between these projects as to property rights. The ILRS has not released any public document stating how it wants to see lunar resources governed. The Rules for Management of International Cooperation in Lunar Samples and Scientific Data assert that scientific research will prevail, and details a request process that anyone wanting to study lunar samples will have to submit to China as the organisational lead. This does suggest ownership and authority over the samples, but there’s nothing to suggest this is vastly different from the Artemis approach.
Meanwhile, the UN Committee on Peaceful Uses of Outer Space (COPUOS), under whose auspices the five core space treaties were negotiated, has been working on what appears to be a valiant attempt at a compromise. After many years, just this March it released a set of draft multilateral principles to govern “space resource activities”. There are some draft principles with alternate options yet to be decided, which express the divide of interpretation between commons, shared resources, and exclusive property rights. This is important work, but being a consensus-based body, and a multilateral process, it’s about finding the lowest common denominator of agreement. And even getting to agreement on the wording of a few, non-controversial, watered down statements can take years. This probably moves too slowly to be in place before these activities begin and a defacto regime falls into place.
My own greatest hope rests with the new initiative also launched under COPUOS: the Action Team on Lunar Resource Activities Consultation, or ATLAC. This was designed specifically to bring China and the US together, but true to the tradition of multilateral space governance, it is also an opportunity for many middle powers and smaller nations to have direct input into these consultations and the practices that emerge as a result. ATLAC will complement the COPUOS working group and provide recommendations, but importantly it has opened its doors to non-State input as well. Industry, civil society, academic experts. Although these non-State actors won’t have voting rights, this broad participation is a non negotiable for moving forward in space governance.
Space Citizenry in Action
This is why I remain optimistic - or at least hopeful - in the face of this imminent geopolitical race for real estate and resources. As the multipolar reality of 2025 becomes undeniable, there is an even greater imperative for cooperation than there was just a few years ago. The Artemis Accords have 55 signatories, but the Accords are no longer directly associated with the Artemis programme. And if the programme itself suffers more delays due to polarisation within the US and funding cuts, then international partnerships will become more diverse in terms of actual leadership.
ATLAC may be the best path towards real solutions, because it combines traditional multilateralism, doesn’t ignore the COPUS working group but also doesn’t rely on it, and invites a multitude of actors into the decision-making process.
It also doesn’t need to reinvent the wheel. There are some solid existing initiatives which I would say are space citzenry in action, and which are likely to become part of the ATLAC process. One in particular that deserves attention is the “Hague Building Blocks” for the Development of an International Framework on Space Resource Activities. These were developed in 2019 by a community of scholars, government representatives, commercial representatives and civil society which called itself the Hague International Space Resources Governance Working Group. These building blocks are accompanied by commentaries, which help to clarify how they could form the basis of a Moon Agreement triggered regime, OR an alternative regime, while expressing multi-stakeholder concerns. It’s this kind of initiative that represents how space governance should be working in the 21st century.
There are other initiatives such as Open Lunar Foundation, the European vision of the Moon Village Association, and a handful of smaller academic or civil society initiatives. And back in 2020 I interviewed Eytan Tepper and Christopher Whitehead on my podcast “Space Law” about their article “Moon Inc: The New Zealand Model of Granting Legal Personality to Natural Resources Applied to Space”, which offers a great proposal that would ensure global input into what rights the Moon may have as a legal entity.
The obvious challenge is that there are so many disparate initiatives and proposals now, that it’s hard to know which one(s) will catch on, and how to gain traction, no matter how good the ideas may be. This is the greatest difficulty of polycentric governance - lots of modes and places of governance occurring in multiple places, amongst overlapping groups of actors at the same time. It’s also the risk of space citizenry becoming splintered or competitive in terms of branding an idea.
Ultimately, there is no simple solution. The only way I see forward is to ensure multistakeholder engagement, and in the end, the solutions that gain traction will simply be the ones that align with the most interests. Space resources may be a fantastic contribution to the 21st century, or they may be at the crux of conflict. Either way, we need to determine together whether extractivism will prevail, or some form of shared process, no matter how basic.
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Thanks for holding onto optimism, it's a hard but necessary stance in this moment. I'm especially encouraged by your framing of ATLAC as a space where middle powers and civil actors can lead by example. I believe we need leadership that aims higher than the lowest common denominator and that Space governance must be driven by principle and long-term benefit, not just consensus.
Thanks for another great article.