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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As bad as stealing bacon – why did the Victorians treat acid attacks so leniently?

In an era of executions and transportation, 19th century courts were surprisingly laissez-faire about acid attacks. 

"We are rather anxious to see the punishment of death rescinded in all cases except that of Murder," stated the Glasgow publication, The Loyal Reformers’ Gazette, in 1831. But it did not share this opinion when it came to Hugh Kennedy.

Previously of “irreproachable character", Kennedy fell out with a fellow servant and decided to take his revenge by pouring acid on the man while he was asleep. “He awoke in agony, one of his eyes being literally burned out,” The Gazette reported.

Lamenting the rise in acid attacks, the otherwise progressive journal recommended “the severest punishment” for Kennedy:

“We would have their arms cut off by the shoulders, and, in that state, send them to roam as outcasts from society without the power of throwing vitriol again."

More than 180 years later, there are echoes of this sentiment in the home secretary’s response to a spate of acid attacks in London. “I quite understand when victims say they feel the perpetrators themselves should have a life sentence,” Amber Rudd told Sky News. She warned attackers would feel “the full force of the law”.

Acid attacks leave the victims permanently disfigured, and often blinded. Surprisingly, though, the kind of hardline punishment advocated by The Gazette was actually highly unusual, according to Dr Katherine Watson, a lecturer in the history of medicine at Oxford Brookes University. Hugh Kennedy was in fact the only person hung for an acid attack.

“If you look at the cases that made it to court, you see there is a huge amount of sympathy for the perpetrators,” she says.

"You want your victim to suffer but you don’t want them to die”

Acid attacks emerged with the industrial revolution in Britain. From the late 1700s, acid was needed to bleach cotton and prevent metals from rusting, and as a result became widely available.

At first, acid was a weapon of insurrection. “Vitriol throwing (that is, the throwing of corrosive substances like sulphuric acid) was a big problem in 1820s Glasgow trade disputes,” says Shane Ewen, an urban historian at Leeds Beckett University. Other cases involved revenge attacks on landlords and employers.

Faced with this anarchic threat, the authorities struck back. Scotland introduced a strict law against acid attacks in the 1820s, while the 1861 Offences Against the Person Act s.29 placed provided for a maximum sentence of life in England and Wales.

In reality, though, acid attackers could expect to receive far more lenient sentences. Why?

“They had sad stories,” says Watson, a leading historian of acid attacks. “Although they had done something terrible, the journalists and juries could empathise with them.”

Acid attacks were seen as expressions of revenge, even glorified as crimes of passion. As Watson puts it: “The point is you want your victim to suffer but you don’t want them to die.”

Although today, around the world, acid attacks are associated with violence against women, both genders used acid as a weapon in 19th century and early 20th century Britain. Acid crept into popular culture. Arthur Conan Doyle’s 1924 Sherlock Holmes story, The Adventure of the Illustrious Client, featured a mistress throwing vitriol in her former lover’s face. In Brighton Rock, Graham Greene’s 1938 novel, the gangster Pinkie attacks his female nemesis Ida Arnold with his vial of acid, before falling to his death.

Lucy Williams, the author of Wayward Women: Female Offending in Victorian England, agrees that Victorians took a lenient attitude to acid attacks. “Historically speaking sentences for acid attacks were quite low,” she says. “Serious terms of imprisonment would only usually be given if the injury caused permanent blindness, death, or was life-threatening.

“If this was not the case, a defendant might spend just a few months in prison - sometimes even less.”

Courts would weigh up factors including the gender of the attacker and victim, and the strength of the substance.

But there was another factor, far removed from compassion “Many of the sentences that we would now consider extremely lenient were a product of a judicial system that valued property over people,” says Williams. It was quite common for violent offences to receive just a few weeks or months in prison.

One case Williams has researched is that of the 28 year old Sarah Newman, who threw sulphuric acid at Cornelius Mahoney, and was tried for the “intent to burn and disfigure him” at the Old Bailey in 1883. The attacker and victim had been living together, and had three children together, but Mahoney had abandoned Newman to marry another woman.

Although Mahoney lost the sight in his right eye, his attacker received just 12 months imprisonment with hard labour.

Two other cases, uncovered by Ancestry.co.uk, illustrate the Victorian attitude to people and property. Mary Morrison, a servant in her 40s, threw acid in the face of her estranged husband after he didn’t give her a weekly allowance. The attack disfigured and blinded him.

In 1883, Morrison was jailed for five years, but released after two and a half. The same year, Dorcas Snell, also in her 40s, received a very similar sentence – for stealing a piece of bacon.

"People just had more options"

If Victorian attitudes become clearer with research, why acid attacks receded in the 20th century remains something of a mystery.

“My theory is people just had more options,” says Watson. With manufacturing on the wane, it became a little harder to get hold of corrosive fluid. But more importantly, the underlying motivation for acid attacks was disappearing. “Women can just walk away from relationships, they can get divorced, get a job. And maybe men don’t feel the same shame if women leave.”

Acid attacks did not disappear completely, though. Yardie gangs – mainly comprised of Jamaican immigrants – used acid as a weapon in the 1960s. Other gangs may have used it too, against victims who would rather suffer in silence than reveal themselves to the police.

Meanwhile, in 1967, the first acid attacks in Bangladesh and India were recorded. This would be the start of a disturbing, misogynistic trend of attacks across Asia. “Acid attacks, like other forms of violence against women, are not random or natural phenomena,” Professor Yakin Ertürk, the UN’s special rapporteur on violence against women, wrote in 2011. “Rather, they are social phenomena deeply embedded in a gender order that has historically privileged patriarchal control over women and justified the use of violence to ‘keep women in their places’.”

The re-emergence of acid attacks in Britain has been interpreted by some as another example of multiculturalism gone wrong. “The acid attacks of London’s Muslim no-go zones”, declared the right-wing, US-based Front Page magazine.

In fact, descriptions of the recent attackers include white men, and black and minority ethnic groups are disproportionately among the victims. A protest by delivery drivers against acid attacks was led by Asian men. 

Jaf Shah, from the Acid Survivors Trust International, suspects the current spate of attacks in fact originates from gang-related warfare that has in turn inspired copycat attacks. “In the UK because of the number of men attacked, it goes against the global pattern,” he says. “It’s complicated by multiple motivations behind these attacks.” Unlike other weapons in the UK, acid is easy to obtain and carry, while acid attacks are prosecuted under the non-specific category of grievous bodily harm. 

Among the recent victims is a British Muslim businessman from Luton, who says he was attacked by a bald white man, two teenage boys in east London, a delivery man, also in east London, who had his moped stolen at the same time, and a man in Leicester whose girlfriend – in a move Hugh Kennedy would recognise – poured acid on him while he slept.

Shah believes the current anxiety about acid attacks stems from the fact the general public is being attacked, rather than simply other members of gangs. Perhaps, also, it relates to the fact that, thanks to advances in our understanding of trauma since the Victorian period, 21st century lawmakers are less interested in the theft of a moped than the lifetime of scars left on the driver who was attacked.

With Rudd promising a crackdown, the penalties for acid throwing are only likely to get harsher. “Many survivors feel the sentencing is too lenient,” Shah says. Still, the rise and fall and rise again of acid throwing in the UK suggests the best way to eradicate the crime may lie outside the courts.

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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