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ELIZABETH:

From Schwartz Media. I’m Elizabeth Kulas. This is 7am.

The discovery of water ice on the moon has started a new space race. This time, it is driven by tech start-ups and venture capital. Ceridwen Dovey on the legal framework that governs this race and the unique role that Australia could play.

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CERIDWEN:

Hello.

ELIZABETH:

Hi Ceridwen, it's Elizabeth here how are you?

Unidentified Man:

Sorry we’re just waiting for a leaf blower...

ELIZABETH:

OK, that's fine.

CERIDWEN:

I mean it's crazy that we can go to the moon and we can't figure out a better way to deal with leaf litter, but anyway…

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ELIZABETH:

Ceridwen can we start in 2008, what happened to set off this new space race?

CERIDWEN:

In 2008 the Indian Space Research Organization they intentionally crashed a probe into the Shackleton crater, which is at the lunar South Pole.

ELIZABETH:

Ceridwen Dovey is a freelance writer. She wrote about commercial space exploration in the latest issue of The Monthly.

CERIDWEN:

The data suggested there was a high likelihood of water ice in those permanently shadowed craters. And then a year later NASA finally did confirm that there are significant ice deposits on the moon in those shadowed craters at the poles.

Archival tape — Unidentified man:

“We’ve discovered significant quantities of water in a permanently shadowed crater on the moon. Lots of water on the moon and it’s there for science and exploration. Water can be used for…”

ELIZABETH:

Why is it that the finding of water ice on the moon is significant, I mean what does it actually mean?

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CERIDWEN:

In short water means the possibility of human habitation, but it also means, you know, water can be split into hydrogen and oxygen for rocket fuel. So Moon Express which is a tech start-up wanting to mine the Moon…

Archival tape — Unidentified man:

“We go to the moon not because it is easy but because it’s profitable. We present to you our spacecraft, the Moon Express MX1.”

CERIDWEN:

If you look at their website they describe the moon as Earth's eighth continent, but they also call the moon a gas station in the sky, and they see water as the oil of space. This is what got a lot of people in the space community excited because it means that deep space missions could be launched from the moon and not from Earth.

The significance of that discovery of water ice can't be overstated because it really was like a gun going off at the starting line of a new space race. This discovery has happened right around the same time as Western space agencies have decided to privatize a lot of space activities and services to bring the costs down. The different players, whether they're national space agencies or corporate players, they all have their own reasons for wanting to get their hands on the water ice.

ELIZABETH:

You mention the privatisation of the sector being a big change that happens almost simultaneously with the discovery of water ice on the moon. What do you think these companies are actually interested in? What is it that they're actually after?

CERIDWEN:

So all these companies are touting these big plans using very exaggerated humanitarian language. They like to say that they are going out there to save us all and to save Earth. But if you dig a little deeper I think there's something very troubling about the way that they frame these essentially profit making activities as humanitarian inspired.

They talk about things like rare earth metals and platinum group metals being on the moon and future power sources like helium 3. But when they speak about the resources on the moon it's not about bringing those back to earth and selling them for profit. It's about using them on the moon to then make these further deep space missions happen, and particularly out to the resource rich asteroid belts, because that's where the big money is. Morgan Stanley, Goldman Sachs, they speak about it as the trillion dollar opportunity and that the world's first trillionaire is going to be made mining these asteroids.

ELIZABETH:

Ceridwen, for me at least the meat of this story is legal — what’s the framework that underpins this new space race? What’s the law that provides for it?

CERIDWEN:

There is a very robust and resilient international space law framework that has existed since the very beginning of the first space age. So there are five main U.N. treaties governing international space law, but the two main ones that I think we should be paying attention to are the 1967 Outer Space Treaty and the 1979 Moon Agreement. The 1967 Outer Space Treaty was ratified by 109 states including all of the major space faring nations of today - it’s often described as the Magna Carta of outer space. And it's in the Outer Space Treaty that outer space is defined as a global commons, the province of all humanity, free to be used and explored but only for the benefit and in the interests of all countries, and on a basis of equality.

The other main treaty, the 1979 Moon Agreement, was opened for signature in 1979. It was after the Americans landed on the moon in 1969 that many of the States Parties to the Outer Space Treaty realised that we actually needed more specific terms of engagement for the moon given that we were, you know, actually there.

ELIZABETH:

What's in that Moon Agreement, how is it different to the Outer Space Treaty that preceded it?

CERIDWEN:

So in the Moon Agreement what it calls for is for the States Parties to the agreement to come together and establish a much more detailed international governance regime once the exploitation of the natural resources of the moon is about to become feasible. But even more controversially for the rich spacefaring nations the Moon Agreement also stated that consideration had to be given to the environmental risks of exploiting off-earth resources and to inter-generational equity. So not just thinking about the present but also about future generations. And then most significantly that there would be mandatory and equitable sharing in the benefits derived from those resources with a special consideration given to developing countries.

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ELIZABETH:

So who did sign up to that treaty?

CERIDWEN:

The Moon Agreement is an interesting one because even though not that much time had passed in contrast to the Outer Space Treaty with its 109 ratifying states, the Moon Agreement only has 18 India and France did sign it but they didn't ratify it. Australia was the only space faring nation at the time to sign and ratify the Moon Agreement and that's become even more significant now.

ELIZABETH:

We’ll be right back.

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ELIZABETH:

Ceridwen, we're talking about the new space race and in particular the idea that commercial claims on resources in space are not really catered to through the existing legal framework. Australia is among the signatories to this U.N. treaty, the Moon Treaty which limits this kind of exploitation. What does that mean for Australia's role in this new space race?

CERIDWEN:

Well I think now that we have our own space agency we are facing a reckoning with our future in space. But I was at a conference held earlier this year at UNSW in Sydney and it was a discussion on the Moon Agreement hosted by the Space Industry Association of Australia. And...yeah look, the industry folk on the panel were pretty vocal about saying industry is not going to wait much longer. We want to know how to protect our assets. So there was a kind of implication that maybe withdrawing from the Moon Agreement would be in their best interests.

At that Moon Agreement meeting one of the representatives from the space agency — this is Alexandra sonata — when she was actually asked outright: “are we going to withdraw from this moon treaty?”, she was absolutely clear that this was not on the table. She said that we are committed to multilateralism not unilateralism when it comes to space.

ELIZABETH:

And so what was happening in other countries in terms of commercial lobbying for change, especially in the law?

CERIDWEN:

So in the US, the space industry lobby is becoming incredibly powerful and they've already had a big win. In 2015 the commercial Space Launch Competitiveness Act was signed into law by President Obama. And that actually very controversially interpreted the Outer Space Treaty ban on appropriation in space to say that actually companies owned by US citizens would be given the right to claim ownership of any resources that they mined off Earth and the right to sell them.

ELIZABETH:

Under the US legislation, under the US legal framework as it stands right now, there's essentially a loophole in that Outer Space Treaty which didn't explicitly cover commercial actors when it was written in the late 60s. Does it mean that a company could mine an asteroid for example but not make a territorial claim to it?

CERIDWEN:

That's how they have chosen to interpret it in the US and in places like Luxembourg, which has also since 2017 put in place a space resources law that allows companies to claim resources that they extract from space as private property. But again this is the problem with international law that those laws then need to be interpreted by the domestic law of individual nations. So it is legally within their rights these nations to interpret international law how they see fit. But there is that dodgy issue of you know, yeah, what happens if you mine an asteroid out of existence. So how is that not a territorial claim.

ELIZABETH:

Where do you think Australia stands as the most significant signatory to the Moon Treaty. What role can we play, and what role is it that you hope we might play, as this moves on?

CERIDWEN:

Australia's been really involved in the development of this international space law framework and treaty and it's actually I think a legacy that we should be really proud of and that we can build on. We have the wonderful example of our leadership role using science diplomacy in Antarctica to essentially buy it time free from being commercially mined. Bob Hawke in 1989 getting the news that the parties to the Antarctic Treaty System were thinking of approving commercial regulated mining, and he quickly got on the phone and chatted to the French prime minister at the time and then they drummed up support amongst smaller European nations so that that convention couldn’t go ahead.

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I'm no expert and I'm not a space geek even, but I became interested in social justice
in outer space. I would dream that Australia would do the same for the moon that we've done to Antarctica and that is to somehow restart these conversations across all nations about needing a governance regime for the moon and be prepared to go to other places in the conversation and to not let ideas like this die. I think it's important to remember that there's a lot of lessons that we could learn from what we've done wrong on Earth. And if we don't have diversity and access and true democratisation of space activities then we're going to end up in the same kind of problems that we have on Earth.

ELIZABETH:

Ceridwen, thank you so much for speaking with us.

CERIDWEN:

Thanks Elizabeth.

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ELIZABETH:

Elsewhere in the news:

David Hurley has been sworn in as the new Governor General. The former chief of defence was controversially appointed to the role before the election. Hurley has listed the support of veterans, asylum seekers and Indigenous Australians as priorities for him in the role.

And in Japan, commercial whaling has recommenced, after the country withdrew from the International Whaling Commission. Japan has indicated it plans to take a quota of 227 whales between now and December. Since the 1986 moratorium on commercial whaling, Japan has insisted the whales it killed are for scientific research.

This is 7am. I’m Elizabeth Kulas. See you Wednesday.