The flags of two countries hang unfurled – not by a breeze but by metal wiring – on the desolate and eerily still surface of the moon. One is the United States Stars and Stripes; the other, Chinese crimson. But if you ask any official in these countries, they will tell you that these flags do not represent any property claims. They look more like alien graffiti.
But if planting a flag on the moon does not count as a property claim, so what does? And in the end, can anyone really own the moon?
When the Soviet Union’s Sputnik 1, the world’s first artificial satellite, crossed the skies in October 1957, it opened up a whole new realm of possibilities. Some of these possibilities were scientific, but others were legal. Over the next decade, the international community drafted the Outer Space Treaty (opens in a new tab) of 1967 (OST), the world’s first legal document dealing explicitly with space exploration.
This treaty remains the most influential space law, despite the fact that it is not technically binding. “It’s not a code of conduct,” said michelle hanlon (opens in a new tab), a space law expert at the University of Mississippi School of Law. “These are just guidelines and principles.”
Related: What is “the man in the moon” and how was it formed?
Despite the lack of applicability, the OST is clear on which countries are grabbing land in space. Article 2 of the treaty explicitly excludes the possibility for a country to claim ownership of parts of space or any celestial body. “A state cannot claim sovereignty over the moon, period,” Hanlon told Live Science.
But when it comes to building structures like bases and habitats on lunar soil, Hanlon said, things get murkier. “They’re kind of territory by another means, aren’t they?”
The Universal Declaration of Human Rights (opens in a new tab) — which rules space under section 3 of the OST — states that individuals have a fundamental right to property. This means that, hypothetically, anyone could build a house on the moon and claim it as their own. And several people have claimed to own parts of the moon, including Robert R. Coles, the former president of New York’s Hayden Planetarium at the American Museum of Natural History, who tried to sell acres of the moon for $1 a coin in 1955 (opens in a new tab)reported the New York Times.
However, Section 12 of the OST includes a provision that could thwart such an attempt. It states that any facility on another celestial body must be usable by all parties. In other words, Hanlon said, it should function as a public space. The 1979 Moon Treaty would have helped reconcile Article 2 with Article 12 by stipulating that any commercial or individual party acting in space be considered part of their nation of origin, rather than an entity independent. But the United States, China and Russia have so far failed to ratify the deal, so it is widely seen as powerless. Like missions like NASA’s Artemis program and the joint China-Russia moon base project kicks off, space advocates like Hanlon will have to do the hard work of reconciling Article 2 with Article 12.
More recently, NASA has attempted to fill some of the gaps in space law with the Accords of Artemis (opens in a new tab), an international agreement designed to facilitate future exploration. Building on the Outer Space Treaty, the agreements set out a series of non-binding principles governing activity on several celestial bodies, including the moon. Among its provisions is the recognition of certain lunar regions, such as the landing site of the Russian Luna probe and the footprints of Neil Armstrong, as protected space heritage.
But notably, the agreements also allow entities to extract and use extraterrestrial resources, which does not please all countries. Twenty-one countries have signed the deals so far, although some major players, including Russia, have declined based on the clause, which they see as providing an unfair advantage to US business interests. Scientific report (opens in a new tab). And some scholars have pointed out that literally taking land on the moon is eerily similar to owning land.
There are other ways to claim property without actually claiming property on the moon. For example, the use of scientific equipment, such as rovers or stationary seismometers, could potentially turn into de facto land claims if the research team forbids others from getting too close to their equipment. All of these are sure to become legal sticking points over the next few decades.
“In many ways, it’s not an immediate issue,” Hanlon said. “And in many ways, it is.” But at the end of the day, “we have to be very, very careful about how we do this responsibly,” she said.