Outdated Treaties and the Rush to Control Resources in Space

Article by Malcolm Davis                               August 31, 2020                                   (aspistrategist.org.au)

• The US Air Force Academy’s Institute for Applied Space Policy and Strategy has a ‘military on the moon’ research team set up ‘to evaluate the possibility and necessity of a sustained US presence on the lunar surface’. The focus of its report (see here) seems to be on the establishment a US lunar military base.

• The notion of a military base on the Moon has the space law community seeing red. Such a base would directly conflict with both the spirit and letter of the 1967 Outer Space Treaty (see here), which provides that: “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapon and the conduct of military maneuvers on celestial bodies shall be forbidden.” A military base on the Moon would also violate the 1979 Moon Treaty (see here), which no major space power has yet ratified. According to these treaties, no Earthly nation may establish a lunar military base, so long as that nation remains a signatory.

• Space law was developed for a different, more benign era and doesn’t adequately address the emerging dynamics of modern space activities. The framework of the treaties contain gaps that that an adversary could exploit in coming decades. For example, ‘commercial’ space operations can provide a convenient cover for states that wish to sidestep established law.

• The 1967 Treaty allows military personnel to be on the Moon for scientific ‘or any other peaceful purposes’, and states that ‘the use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited’. This leaves a lunar facility’s role open to interpretation. Is it a commercial base or an undeclared military facility?

• Article IV of the 1967 Treaty extends to both military and private commercial activities in space. “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by government agencies or by non-governmental entities.”

• The 1967 Treaty states that space is “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.’ However, the 2015 US Commercial Space Launch Competitiveness Act (see here) sets a precedent for legitimate activity by permitting a commercial company to secure, own and profit from a space resource. This creates a grey area between lawful commercial activities and illegal claims of sovereignty. Safeguarding access to a resource, and preventing a competitor from intruding, implies the necessity of security that the 1967 Treaty wasn’t designed to manage.

• In April 2020, President Trump signed an executive order ‘encouraging support for the recovery and use of space resources’… consistent with applicable law’. The Trump administration then released the Artemis Accords (see here) designed to establish a common set of principles to govern the civil exploration and use of outer space. In the accords, ‘all activities [on the Moon] will be conducted for peaceful purposes, per the tenets of the (1967) Outer Space Treaty’. The Artemis Accords require the US and its partners to share information on the location and general nature of operations so that ‘safety zones’ can be created to ‘prevent harmful interference’. This implies the delineation of territory or a zone of control around a facility.

• While lunar military bases may be prohibited, competition for resource wealth in space will test the premise of the 1967 Treaty. States and non-state actors will inevitably compete for access to and control over resources in space, and for a permanent and exclusive presence where those resources are located.

The 2019 movie Ad Astra had a US military base on the moon and a memorable battle scene involving a moon rover, implying that by late this century the moon will be heavily militarised. A question now being discussed in space policy circles is whether fact will follow science fiction, as the US Space Force considers exactly what its role will be. It has some pretty ambitious ideas, and a recent report indicates that its thinking will be shaped by a deep astrostrategic perspective.

So it wasn’t much of a surprise when news emerged that a group of US Air Force Academy cadets are researching the idea of military bases on the lunar surface. The academy’s Institute for Applied Space Policy and Strategy has a ‘military on the moon’ research team that was set up ‘to evaluate the possibility and necessity of a sustained United States presence on the lunar surface’. The focus seems to be on a military base, though there’s little information on exactly what they’re planning.

But the very notion of a military base on the moon has the space law community understandably seeing red.

Such a base would directly conflict with both the spirit and letter of the 1967 Outer Space Treaty (OST), which provides the foundation for space law.

Article IV of the treaty states that: The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapon and the conduct of military manoeuvres on celestial bodies shall be forbidden.

A military base on the moon would also violate the 1979 Moon Treaty, which Australia supports, though no major space power has ratified it. So that means no overt or declared lunar military bases, at least as long as all powers remain signatories to the OST.
The academy cadets would no doubt be aware of this. Why even consider such a move, then?

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