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It’ll soon get crowded on the lunar surface. Will the laws of space be able to keep pace?

It is time to ponder the future legal, political, economic implications of the window of opportunity that India is helping to open up.

Written by Pratik Kanjilal |
Updated: September 10, 2019 10:25:07 am
chandrayaan 2, chandrayaan 2 lander found, india chandrayaan 2 mission, isro India’s lander may have failed, but that is only a setback in the perceptions game. (Illustration by C R Sasikumar)

The US Air Force Brigadier General, Homer A Boushey, an aeronautical engineer, a friend of rocketry pioneer, Robert Goddard, commanded the USAF’s first jet fighter group and retired as deputy director of air force research and development. Despite such an illustrious career, he is chiefly remembered as a real-life Dr Strangelove. He owes this unsavoury and undeserved reputation to his speech at a Washington aero club in 1958. The venue wasn’t exactly strategically significant, but US News and World Report published an extract including a sentence that lingered in public memory for decades: “He who controls the moon controls the earth.”

Boushey’s opinion was voiced when the tide of the war of perceptions — an important component of the Cold War — had turned against America. Sputnik had been beeping its victory cry from the skies for months, and the USSR had manned missions on the drawing board. Yuri Gagarin and Valentina Tereshkova would take to the skies in three and five years, respectively. The tide of global perceptions would turn decisively only in 1969 with Apollo 11, which planted the stars and stripes on the moon. But after 1972, NASA lost interest in putting space boots on the lunar regolith. The geopolitical point had been made, and there was nothing more to be said. Roma locuta, causa finita.

But almost 50 years later, the race to the moon has heated up again, and it is no longer just about perceptions. China’s Chang’e 4 mission is exploring the dark side of the moon. India’s Vikram may have crash-landed, but failure is not unusual in space — Israel’s Beresheet craft crashed into the moon in April — and is best regarded as experience gained for future missions. Three nations have soft-landed craft on the moon. In a few years, there will be five or more. It’ll begin to get crowded up there, and competitive. Will the laws of space be able to keep pace?

The moon was to be governed by the international community under the Moon Treaty of 1979, which failed for want of ratification by nations conducting manned spaceflight. By default, it is governed by the Outer Space Treaty, a document with high-minded principles adopted by the United Nations in 1966, which defines space as the province of humankind, to be used for the advancement of science and of all nations. It recognises no territorial or ownership rights, and goes to the extent of allowing nations to inspect each other’s facilities. At the time, and in the time of Boushey’s speech eight years earlier, in which the dark side of the moon was seen as a fine location for hidden nuclear missile bases, the focus was on the prevention of militarisation and nuclear conflict, and the encouragement of scientific cooperation for universal benefit.

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The Outer Space Treaty bears strong similarities with the highly successful Antarctic Treaty System of 1959, which emphasised these very imperatives. Cynics and wags have always held that Antarctica became the province of science because it was good for nothing else, penguins having no commercial value. When the Moon Treaty sought ratification, our satellite, too, was regarded as a barren, inhospitable waste, rewarding only for science. But, from the late eighties, as knowledge and technology evolved, human motives changed too, and the space community began to discuss the fascinating question of material benefit from the moon and planets.

The first proposal was to mine the lunar regolith for Helium 3, a potential source of clean and safe nuclear energy. The leadership of the Chang’e programme had stated Helium 3 as a mission goal. India’s Chandrayaan-1 carried Helium-3-specific payloads, and the search for the valuable isotope will be continued by Chandrayaan-2’s orbiter. But, feasibility remained in question. While low lunar gravity could make mining cheaper, establishing a human habitat on a barren world would be prohibitively expensive.

Chandrayaan-1 changed that perception by confirming the existence of water or hydroxyl (-OH, the anion of the water molecule) on the moon. The universal solvent is the basis for a carbon-based ecosystem. It is likely to be a product of the proton-rich solar wind, and is speculated to collect as ice in the polar regions, where low insolation would reduce vapourisation. Significantly, the Vikram lander was to touch down closer to the lunar south pole than any previous mission.

Meanwhile, though weapons remain banned from space, the military is not. In 2015, in the course of military restructuring, Beijing established the People’s Liberation Army Strategic Support Force, which has an interest in space. In 2018, the US president Donald Trump proposed a United States Space Force. This does not reflect the imperatives of the Outer Space Treaty, but rather, national imperatives to protect future strategic assets and goals. Competitiveness is an essentially human trait, and in the future, a stake in the moon could not only confer prestige, but also material and geopolitical gain. Recall the history of the internet, which was conceived under the aegis of the state and academia, but grew explosively in commercial hands. Now, space exploration and research, traditionally the province of governments, is seeing strong private interest.

Frontier explorers generally cooperate while the environment is hostile. Litigation and conflict follows when they are secure and in a position to generate assets and value. The Outer Space Treaty may be unequal to such a development. Meaningful case law and precedents have not developed, since most of space litigation has been about patent infringements and satellite interference, or has been frivolous. Material infringement would be a novelty which lunar explorers must work out.

India’s lander may have failed, but that is only a setback in the perceptions game. The orbiter, which hosts almost all the science in the project, remains in service. With two successful remote sensing missions, India has effectively joined the tiny club of frontrunners in the race to the moon. It is time to ponder the future legal, political and economic implications of the window of opportunity which India is helping to open up, and the questions involved are much more complex than Boushey imagined in 1958.

This first appeared in The Indian Express print edition with the headline A stake in the Moon.

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