Shade of things to come: Neil Armstrong ventured across the moon's surface on 20 July 1969, marking the start of efforts to claim our near neighbour. Photograph: NASA/New York Times/Redux.
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Who owns the moon? We're just going to have to get up there and find out

A legal loophole has made it impossible to say who can claim the moon - but with a wealth of minerals and "rare earth" elements, plus huge potential for space exploration, we'll have to get up there and fight it out.

“I know I may not make it through this lunar night.” The China Academy of Space Technology laid the pathos on thick when it gave its lunar robot Jade Rabbit a farewell speech at the end of last month. The rover had become mired in moon dust and was unable to enter hibernation. Facing 14 days without sunlight, the solar-powered robot, launched on 2 December, was unlikely to survive. “Good night, Planet Earth,” it said. “Good night, humanity.”

It looked like the end of a venture that could have accelerated the process of finding out who – if anyone – owns the moon. The ultimate goal for Jade Rabbit was to bore a hole in the moon and see what moon rock is made of. That’s because the Chinese think the moon’s minerals might be worth extracting. “They are looking at feasibility for mining the moon, and they are likely to do it if there’s a strong business case,” says Richard Holdaway, director of the space division at the UK’s Rutherford Appleton Laboratory, which collaborates closely with China’s space programme.

There would be nothing illegal about such an operation because international laws covering the moon are “way, way behind”, as Holdaway puts it. In theory, anyone who could manage it (and afford it) could go to the moon tomorrow, dig out a huge chunk of lunar rock, bring it back to earth and sell it off to the highest bidder. The Chinese could take the moon apart and sell it bit by bit without breaking international law. The question we have to ask ourselves is simple: do we see a need to prevent that happening?

The moon’s bounty is not fanciful science fiction. “There is stuff on the moon to mine – no doubt about it,” Holdaway says. We know that minerals that are hard to find on earth, such as the “rare earth” elements and the metals titanium and uranium, are abundant up there. But the main prize is the lighter isotope of helium, known as helium-3. This gas is the critical fuel for nuclear fusion reactors, which promise an energy yield many times higher than the present generation of fission-powered reactors. Helium-3 costs roughly $10m a kilo. Though we don’t yet have commercial fusion reactors, these might not be far off. When they arrive, the demand for helium-3 will outstrip supply, and the easiest place to get more will be from moon rock. It couldn’t be easier: heat the rock and the gas comes out.

It’s not just the Chinese who have ambitions in this direction. Some private companies also have their eye on lunar rock as a source of riches. Most are based in the US, and they are actively working on lunar landers that will eventually be able to perform mineral extraction.

As yet, it is very hard to know whether the business case will stand up. It’s not a small endeavour to set up a factory on the moon. It is horrendously expensive to leave Planet Earth. Space on a shuttle is sold, like poultry, by weight. The cost of escaping the earth is roughly $25,000 per kilo. Anyone paying that kind of money upfront needs strong guarantees that the investment is worthwhile. That is why the space entrepreneur Robert Bigelow has asked the US government to nail down issues raised by who can mine the moon. “The time has come to get serious about lunar property rights,” he told a press briefing last November.

Bigelow made his money in hotels and property and has decided to pursue accommodation in space as his next venture. He already has a contract to supply astronaut habitats to Nasa; he has also said he wants to build habitats on the moon and, eventually, Mars. That plan, he argues, will be compromised unless issues of lunar ownership are clarified.

Two treaties cover the beyond-earth behaviour of nations and private companies. The oldest is the Outer Space Treaty of 1967. It says that “the exploration and use of outer space … shall be carried out for the benefit and in the interests of all countries … and shall be the province of all mankind”.

The agreement wasn’t drawn up to deal with questions of property rights, however. “It strictly prohibits claims by sovereign nations, but it does not expressly prohibit private entities from claiming private property rights,” says Michael J Listner, a New Hampshire-based lawyer specialising in space policy. “Depending on who you talk to, that omission creates a loophole for private ownership rights.”

One of the purposes of the treaty was to allow private companies to engage in activities in space, creating the opportunity for establishing commercial satellite networks, for instance. Back when the pact was developed, the Soviet Union argued that nation states were the only proper actors in space; the US wanted to give private companies a chance to exploit the new frontier. So, a compromise was reached: Article VI says that non-governmental organisations have to be supervised by their nation states.

The treaty says nothing about those non-governmental actors claiming property rights, however. “It doesn’t prohibit them, it doesn’t allow them. It’s completely silent,” says Joanne Gabrynowicz, a professor emerita of space law at the University of Mississippi who acts as an official observer to the UN effort to oversee the legal framework governing use of space.

This gaping hole in the legislation is where the 1984 Moon Agreement comes in. The United Nations Office for Outer Space Affairs hosts the agreement, which states that the moon’s environment should not be disrupted, that it should be used only for peaceful purposes, “that the moon and its natural resources are the common heritage of mankind” and that “an international regime” should be established “to govern the exploitation of the natural resources of the moon when such exploitation is about to become feasible”.

It sounds cut and dried: no one can own bits of the moon without further negotiations. The problem is that the seven nations which have ratified the Moon Agreement have no investment in it – they are not space-faring. “It’s considered pointless because the US, China and Russia didn’t even become a party to it,” Listner says. “If any of the three had done that, it might have been more meaningful.” Holdaway agrees: “It’s not legally binding. China could send armies of robots and humans and effectively stick a flag in the ground and say: ‘It’s ours.’ ”

In truth, there is no cause for alarm. The technology required for commercial exploitation is still decades away. The main question for now is whether it will ever be worth anyone’s while to develop the landers and infrastructure necessary to kick-start lunar-based industry.

Google has given some an incentive to develop our lunar capabilities. It is offering $20m to anyone who is the first to land on the moon’s surface, travel 500 metres and then send a couple of high-definition broadcasts back to earth.

Eighteen teams are aiming at this “Lunar XPrize”, which expires at the end of next year. One of the front-runners is Moon Express, a company based in Silicon Valley, California. In December, it unveiled its design for a lunar lander named MX-1. MX-1 is “the size of a large coffee table” and will get into space in the same way most satellites are deployed: aboard a conventional rocket that releases the lander once it has reached roughly 2,000 kilometres in altitude. Fuelled by hydrogen peroxide, the MX-1 will then wend its way to the moon to carry out whatever tasks are required.

Bob Richards, the founder and chief executive of Moon Express, calls the lander the “iPhone of space”, because it can perform a variety of roles on the lunar surface. Moon Express intends to accomplish its first lunar sample return mission by 2020. “We expect that material to be very valuable, with a global market,” Richards says.

Though it sounds impressive, MX-1 is so far nothing more than a design. Things get a lot harder once they need to become reality, Listner points out. “It’s fun to talk about it on a blog. It’s another thing to get down to doing it,” he says. “This isn’t like opening up the Wild West: space is hard and dangerous. You’ve got to bring your air, your water, your food – and we need to develop an understanding of how the lunar environment affects the human physiology.” It’s likely that the labour of resource extraction will involve human beings as well as robots, and we don’t know what it will be like to do a long stint on the moon. “We have some experience with the Apollo missions, but, between all those missions, humans have spent less than 100 hours performing activities on the surface,” Listner says.

Clearly there’s a long way to go – and it is entirely possible that nothing will be done about the legal issues until the first claims are staked. That’s what is so useful about China’s Jade Rabbit project: it makes it clear claims will be staked soon. Once a claim is laid, something will have to give, Gabrynowicz reckons. “When it becomes apparent that there are going to be credible attempts at resource extraction, there will have to be some diplomatic discussions,” she says.

According to Richard Bilder, a space law specialist at the University of Wisconsin-Madison, the high probability of those discussions hitting an impasse makes it worth pushing nations to start the process of setting up a legal regime right away. “This is likely to be easier to accomplish now, while prospects for lunar extraction are still only speculative, than after one or several countries succeed in establishing a lunar base and have clear special stakes and interests,” he says.

Yet Bilder remains pessimistic about the likelihood of this happening. The United States, he notes, seems uninterested, and there is little incentive for China and India to attempt to resolve the legal problems now – they will just want to get on with establishing lunar bases and launching whatever activities they deem worth pursuing.

Others are more upbeat. Some concerns about Chinese ambition derive from a cold war perspective that is no longer relevant, Gabrynowicz argues. The truth is, nations are now far more likely to become partners in seeking to exploit lunar resources. Holdaway points out that the UK and China are already working together in space, and says there is little reason to think both countries won’t be open to partnerships concerning the moon.

And even if it’s not nations but private companies, there could still be international collaboration, Listner reckons. “Some companies might form conglomerates to combine their resources to do it,” he says. We shouldn’t necessarily be concerned about that: private enterprises are still accountable to national governments and so will be subject to regulation – especially as governments are likely to be among their main customers, Gabrynowicz notes.

Last month, Nasa raised the game by launching a competitor to the Lunar XPrize. Under the Catalyst scheme, Nasa will share its experience and resources with private firms; in return it will get access to the companies’ designs for lunar landers. There’s a twist: US security regulations will make it much easier for US firms to co-operate with Nasa than businesses based abroad. So if Catalyst works as a stimulus to moon mining, the spoils will most likely belong to America.

Whether it’s helium-3 fuel, mineral resources or plain water – what Richards calls “the oil of the solar system”, because it is vital for life support and rocket fuel – lunar resources will almost certainly be used first to support further space exploration. It makes much more sense to launch a manned mission to Mars from the moon than from earth: that way overcomes the difficulties of escaping our planet’s gravity. Operators of fusion-powered Mars probes, crewed by astronauts from a lunar base, are the most likely customers of the first lunar industries. It remains to be seen whether we will be happy with any of that, Holdaway says. “Will this be acceptable to the rest of world? I don’t think anyone really knows the answer to that.”

Michael Brooks is the New Statesman’s science columnist

Michael Brooks holds a PhD in quantum physics. He writes a weekly science column for the New Statesman, and his most recent book is At the Edge of Uncertainty: 11 Discoveries Taking Science by Surprise.

This article first appeared in the 19 February 2014 issue of the New Statesman, The Space Issue

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An English hero for the ages: Ian Botham at 60

Botham blends his sportsmanship and deep-seated passion for cricket with a lust for life.

Begging W H Auden’s pardon, it is possible both to honour and to value the vertical man, and in the case of Ian Botham, who turned 60 on 24 November, it is our bounden duty. No sportsman has given Britons so much to enjoy in the past half-century and no sportsman is loved more. Two decades after he retired from first-class cricket, his reputation as one of life’s champions remains unassailable.

No mere cricketer is he, either. Botham is a philanthropist, having raised more than £12m for various charities, notably Leukaemia and Lymphoma Research. In December, 30 years after his first walk from John o’Groats to Land’s End, he will set off again, in South Africa, where England are on tour. And he really does walk, too, not amble. As somebody who accompanied him on one of his dozen walks said: “You can’t keep up with him. The man is a phenomenon.”

Of all postwar sportsmen, only Bobby Charlton and, at a pinch, Henry Cooper come close to matching Botham’s enduring popularity. But Charlton, a shy man who was scarred by the Munich plane crash of 1958 (and may never have recovered from its emotional effects), has never comfortably occupied a public stage; and Cooper, being a boxer, had a solitary role. Botham, by contrast, spoke for England. Whenever he picked up his bat, or had a ball in his hand, he left spectators in no doubt.

Others have also spoken for England. Bobby Moore and Martin Johnson, captains respectively of England’s World Cup-winning football and rugby teams, were great players but did not reach out to people as naturally as Botham. Nick Faldo, Lester Piggott, Sebastian Coe and, to bring us up to date, Lewis Hamilton have beaten the best in the world, but they lacked those qualities that Botham displayed so freely. That is not to mark them down. They were, and are, champions. But Botham was born under a different star.

It was John Arlott, the great cricket commentator, who first spotted his uniqueness. Covering a match at Taunton in 1974, he asked the young colt to carry his bags up the rickety staircase to the press box, where Arlott, wearing his oenophile’s hat, pulled out a bottle of red wine and invited Botham to drink. Forty years later Botham is a discriminating wine drinker – and maker. Along with his friend and fellow England great Bob Willis, and their Australian wine­making pal Geoff Merrill, he has put his name to a notable Shiraz, “BMW”.

Arlott, with his nose for talent and good company, saw something in the young Botham that Brian Close, his captain at Somerset, was beginning to bring out. Later, Mike Brearley, as England captain, drew out something even more remarkable. As Rodgers and Hammerstein wrote, you’ve got to be carefully taught. And Botham, a fine team man as well as a supreme individual performer, has never withheld praise from those who enabled him to find his voice.

If sport reveals character, then cricket is the game that reveals it most clearly. In no other sport is the individual performance rooted so firmly in a team context. Every over brings a contest of skill and intelligence between batsman and bowler but only a team can win the match. “A cricketer,” as Arlott said, “is showing you something of himself all the time.”

Cricket also reveals national character more than any other sport. Football may be the most popular game in the world but cricket, and cricketers, tell us far more about England and Englishness. It is instructive, in this regard, to hear what Philippe Auclair, a French journalist and author long resident in London, has to say about Botham: “He is essentially an 18th-century Englishman.” In one! It’s not difficult to sense a kinship with Tom Jones, Fielding’s embodiment of 18th-century life, who began his journey, as readers may recall, in Somerset.

A country boy who played for Worcestershire after leaving Somerset, and who lives by choice in North Yorkshire, Botham is an old-fashioned Englishman. Although nobody has yet found him listening to the parson’s sermon, he is conservative with a small and upper-case C, a robust monarchist, handy with rod and gun, and happiest with a beaker in front of him. He represents (though he would never claim to be a representative) all those people who understand instinctively what England means, not in a narrow way, but through something that is in the blood.

Above all, he will be remembered for ever as the hero of 1981. Even now it takes some believing that Botham bowled and batted with such striking success that the Australians, who were one up after two Tests, were crushed. Some of us who were actually at Headingley for the famous third Test – thousands who claim to have been there were not – recall the odds of 500-1 on an England victory going up on the electronic scoreboard that Saturday evening.

Botham made 149 not out as England, following on, beat the Aussies by 18 runs. For three hours the country seemed to stop. In the next Test, at Edgbaston, Botham took five wickets for one run as Australia fell under his spell. Then, at Old Trafford, on a dank Saturday afternoon, he played the most memorable innings of his life and one of the greatest innings ever played by an Englishman: 118 magnificent, joyful runs. Joy: that’s the word. Botham brought joy into people’s lives.

Yet it was the final Test at the Oval, which ended in a draw, that brought from him a performance no less remarkable than those from before. He bowled 89 overs in that match, flat out, continuing to run in when others withdrew with injury. That was the team man coming to the fore. Little wonder his comrades thought the world of him.

Modest, loyal, respectful to opponents, grateful to all who have lent him a hand, and supported throughout a turbulent life by Kath, his rock of a wife, and their three children, this is a cricketing hero to rank with W G Grace, Jack Hobbs, Wally Hammond and Fred Trueman. A feature in the lives of all who saw him, and a very English hero. 

This article first appeared in the 26 November 2015 issue of the New Statesman, Terror vs the State