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The Outer Space and Moon Treaties and the Coming Moon Rush

by Bill Carswell
Los Angeles - Apr 18, 2002
Instead of being led by superpowers, the next space race could reasonably be instigated by a developing nation with spacefaring capabilities. An analysis of current events points to China as being a strong candidate for filling this role.

The race would not be a sprint, like the cold war race to the moon, but rather a marathon. The goal of the instigator would be to use lunar resources to build solar power satellites to help develop rural and isolated population centers.

The race would begin when other spacefaring nations decide not to let the instigating country take an uncontested lead in the technologies and capabilities associated with a massive space power capability. Unlike the moon race of the 1960s, which had national prestige as a goal, this phenomenon will more resemble the California gold rush.

Just as the California gold rush happened spontaneously once the riches of gold were discovered in the mountains of California, so too will the moon rush happen spontaneously once a profitable business model is developed for using lunar resources to support the development of large-scale solar power satellite systems. Inevitably, at some point in this process the legal ramifications of the Outer Space and Moon Treaties will become issues.

The "Outer Space Treaty" is the governing United Nations document for international, state-sponsored space activities. Nearly all of the UN member nations have ratified this treaty. Another treaty, the "Moon Treaty," has also been opened for signature by the United Nations.

However, due to its provisions prohibiting the ownership of natural real estate in space, the treaty was virtually ignored by the world community. Only nine countries have ratified it and just five others have signed it. The cold shoulders it received from the primary spacefaring nations have all but sealed its fate as an irrelevant document in the larger scheme of space development.

Both of these treaties, the Outer Space Treaty and the Moon Treaty, have generated much discussion and speculation regarding the impact they might have on space, especially lunar, development.

The problem with these discussions is that once an organization decides, for whatever reason, to begin extracting, processing and using or selling the lunar regolith, for example, it's very unlikely that either of these treaties will influence that decision. The following scenario illustrates this point.

China presents an interesting example for a lunar development scenario. China is not a third world country when it comes to their space program capabilities. They are very close to being able to put a human in orbit, and as Jane's Online reports, they are aggressively moving to be able to do just that. Furthermore, China has evidenced its willingness to invest in other space activities.

Lunar Enterprise Daily recently reported that Chinese President Jiang Zemin has made the first official announcement of his country's intentions to build human-attended space stations.

Another recent report in a SpaceDaily article on Xynergy Corporation's plans to demonstrate space-to-earth power beaming states, "China has agreed to purchase a power plant (solar power satellite) system of its own upon completion of the CSPIE's (Corporate Space Power Industries and Electric, Inc., a Xynergy partner) first successful demonstration. China has a special interest due to its environmental problems."

If China does decide to undertake space-to-earth power beaming, the scenario could easily have them capitalizing on lunar resources to accomplish their goals. After the first demonstration with Xynergy they would have to begin looking at the economics of large-scale activities.

Clearly, at this point it makes sense to start using lunar materials for space activities. Four separate studies, two funded by NASA and two funded by the Space Studies Institute, agreed that "at least 90% of solar power satellites could be built from nonterrestrial materials at great reduction to overall system cost."

Obviously many technical challenges remain to be overcome before that much of the system can be manufactured in space and it must be acknowledged that the cost estimates in these studies were carried out based strictly on mass consideration without regard to technology development and production costs.

However, it would be reasonable to start with the processing of lunar regolith into crude structural support materials for the photovoltaic farms, or using lunar water for station-keeping fuel. These would be very simple processes taking very little in the form of on-orbit sophistication. As these processes matured and the infrastructure needed to support them properly were developed, more complicated processing techniques could be employed, such as manufacturing photovoltaic cells from lunar regolith.

Once these space power and lunar resource utilization activities have begun, other countries will feel compelled to match those efforts. The response of the United States is an example worth considering. When a credible effort is undertaken to begin using the resources of the moon to develop a significant power collection and transmission capability in space, the United States will respond for several reasons.

The first is that its general public general public will feel threatened. The public likely will not understand the intricate details of the technical and political issues, but it will be afraid of the idea that another nation might capture and control "the high ground." The military will rightfully fear that any state with control of that much power in space is a force to be concerned about. They will demand that the United States build its own power farms in space as well.

Finally the entrenched, established business communities will finally develop a credible economic model based on real cost numbers and be driven by the profit motive to join the effort. Other nations are also likely to join the fray as well. Japan, according to press reports, is already planning a solar power satellite demonstration project. The next space race, the moon rush, will have begun. And this time it will be here to stay.

Where do the Outer Space and Moon treaties fit into all of this? The Moon Treaty doesn't, really. Realistically it's a meaningless document that isn't going to deter the majority of the spacefaring nations from using lunar resources.

The European Space Agency may have a problem with it since France has signed the treaty and both The Netherlands and Austria actually went so far as to ratify it. A 1996 paper by Dr. Hanneke L. van Traa-Engelman of The Netherlands acknowledges that lunar activities could become an important factor in commercial space development and suggests that the Moon Treaty needs to be reassessed.

Van Traa-Engelman believes that particular attention needs to be paid to the Moon Treaty's article XI provisions that the moon is the common heritage of mankind and that an international regime should be established to govern the exploitation of the moon when such activities become feasible.

These are precisely the reasons why most countries refused to accept the Moon Treaty. But with three member countries having ratified or signed it, the European Space Agency may have a problem participating in the moon rush when it finally takes place.

Most space-faring nations, however, have ratified the Outer Space Treaty, including The Russian Federation, the United States and China. But even with these ratifications in place the treaty may have little effect on attitudes toward lunar development.

As evidenced by its actions in the International Space Station program The United States in particular seems willing to abrogate international treaties and agreements when they become inconvenient. But, if one assumes for the sake of argument that all member states will make a conscientious effort to abide by the letter, if not the spirit, of the Outer Space Treaty, what might be the implications?

According to some analysts, such as Glenn Harlan Reynolds , the Outer Space Treaty doesn't impose any egregious restrictions on the commercial development of the moon. The Outer Space Treaty prohibits national appropriation, not private appropriation of lunar resources.

In fact it was this very loophole, according to Reynolds, that was the main driver behind the drafting of the Moon Treaty. If this is the case then it appears that the Outer Space Treaty presents no real impediment to lunar resource utilization by commercial entities.

But there are those who disagree with this analysis. Virgiliu Pop cogently sums up the arguments of that opposing camp, concluding that for a private appropriation of land to survive it must be endorsed by a state, but that state endorsement of a private appropriation is interpreted legally as a form of state appropriation and is therefore disallowed by the Outer Space Treaty.

Therefore, in order for a private appropriation to succeed, according to Pop, the state that is sponsoring, and more importantly protecting, the landowner must abrogate the Treaty. But Pop does not discuss the scenario of a private appropriation by an organization not seeking the endorsement, and therefore the protection, of a sovereign state.

Many companies have, over the years, sent expeditions to the far corners of the world without state-sponsored protection. It seems reasonable that someday a company will decide to accept the risk of sending an expedition to the moon without state-sponsored protection, especially since the moon has no hostile populations to threaten an excavating crew.

It is easy to envision a scenario in which a forward-looking, space-faring and developing country like China, or maybe even India, undertaking a lunar development activity and sparking the next great space race, the moon rush. The Moon Treaty is no impediment, and the Outer Space Treaty is acknowledged as debatable on the issue of private appropriation of lunar materials.

With low-cost space-to-earth solar power beaming projects already on two drawing boards, the time seems to be rapidly approaching when the use of lunar materials for space power satellite construction will become a reality.

The biggest obstacle to these lunar activities will not be the legal issues behind the Outer Space and Moon Treaties, but the materials processing capabilities that have yet to be demonstrated.

Therefore an aggressive effort is recommended to begin using the International Space Station to demonstrate the lunar materials processing techniques that will be needed in the future.

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