How an outdated legal framework leaves the door open for a second colonial race.

[dropcap size=big]W[/dropcap]ho owns the Moon? Barring frivolous claims from those who would sell you a plot on it, surely no-one in particular. Yet the prospect of Moon-mining, brought about by China’s ‘Jade Rabbit’ landing, provokes this very question that few seem to be asking.

The Outer Space Treaty (1967), whilst limiting military use and claims of sovereignty by states, ignores the issue of commercial exploitation entirely. It’s concerned with nation-states and militarisation; not corporations and mineral exploitation. As these prospects come closer to feasibility though, the weaknesses of the narrow confines of the treaty become apparent. We need only to look at the East India Company to see how closely economic exploitation, military might and sovereignty are intertwined.

The treaty was drawn up in the environment of the Cold War, and space exploration has taken a relative slumber since. Now, with several space-interested powers at play and the reasons in favour of mineral exploitation becoming more focused, the time is right for a re-examination of our relationship to Space.

Antarctica may provide some suggestions; 1991 saw the addition of the Environmental Protection supplement to the Antarctic Treaty, prohibiting ‘any activity relating to mineral resources, other than scientific research’ (Art. 7). Given the world’s thirst for rare earth metals, this may now be an unfeasible level of restriction, but allowing a Wild West resource-grab to open up in space is undesirable as an alternative.

There is no reason why Chinese exploitation of Moon resources might not benefit wider humanity; it certainly has the capability to. However, the Chinese government’s aggressive stance over territorial disputes in the South China Sea under the previous administration casts a shadow over the credibility of the ‘peaceful rise’ policy. Furthermore, in a system where the ruling party wields immense power directly through policy rather than law, such a position is only ever 5 years away from a dramatic U-turn.

As Xi Jinping’s administration softens its stance on collective engagement with ASEAN (over  potentially unequal bilateral talks), the power of making cooperation the winning strategy is apparent:  when everyone wants the resources, the trick is to alter the stakes so that cooperation provides a better deal than the raw use of economic or military clout.

Short of the now-unlikely creation of an Antarctic-like arrangement where mineral resources can be exploited only for scientific purposes, there exists another option.

Enter the mostly-unratified U.N. Moon Treaty of 1979 (annex). Unlike the annex to the Antarctic Treaty, it does not prohibit commercial mineral resource exploitation altogether, but does mandate international cooperation in doing so. Such an arrangement would not only allow efficient pooling of technological and financial resources, but create interdependence beneficial in fostering wider ties in the way that European Coal & Steel (a predecessor of the E.U.) was designed to prevent a third World War. Currently, none of the major Space powers has ratified the annex.

In any case, as Glenn Harlan Reynolds observes, both the Outer Space Treaty and Moon Treaty can be pulled out of with a year’s notice. A situation where it is not in the interest of a lone state – no matter how rich or powerful – to do this can only be created by making cooperation the more beneficial mode. As it stands, it’s winner-takes-all.

To change how the race is run, we must alter the incentives. Once the horse has bolted, it will be too late.