Credit: Stephen Rahn
Introduction
China is on the verge of becoming the world’s third space-faring superpower and its celestial intrigue has triggered American apprehension. NASA’s Bill Nelson claimed China would attempt to take ownership of the moon and exclude others from using lunar resources. While China denies its claim for ownership over space territory, Nelson insisted, “It is a fact: we’re in a space race.”
This political quarrel developed amidst tense international foreign relations between the US, Russia, and China. While NASA and the Russian space agency, Roscosmos, have a long history of cooperation in space exploration and technology, NASA and the evolving China National Space Administration (CNSA) do not. China sent its first taikonaut (Chinese astronaut) to space in 2003, 42 years after Russia sent the first man into orbit and 34 years after the US sent the first man to the moon. Nonetheless, China’s emerging interest in space expeditions has produced theoretical, yet someday physically plausible, territorial controversy.
The U.S.-China space controversy is apparent in their rival programs: the Artemis program, led by the US, and the International Lunar Research Station, led by China and Russia. The Artemis program is NASA’s attempt to resume activities on the surface of the Moon. After successfully sending the first woman and person of color to the moon, NASA will attempt to “establish the first long-term [lunar] presence.” To do this, NASA created the Artemis Accords, US and international partnerships collaborating to “create a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy.”
Yet, despite its inclusive language, Russia and China were intentionally omitted from the agreement. Congress had previously prohibited NASA from collaborating with China, while Russia rejected participation, claiming the agreement was too “US-centric.” Consequently, China and Russia created a joint project to establish a permanent moon base, the International Lunar Research Station.
While NASA and China’s programs do not technically conflict, they have the makings of a second, 21st-century space race. All countries involved recognize the benefits of establishing a presence on the moon, regardless of whether or not they can legally claim it as territory. The rising tension between these countries reflects the weakness of international space law: space is an infinite fabric of uninhabited territory, abundant in resources, commercial benefits, and military advantages, and current treaties are not equipped to handle the competing interests of major space-faring nations.
Legal Background in International Space Law
International space law is comprised of five international treaties. The most fundamental and influential of these is the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” also known as the “Outer Space Treaty” of 1967. The Outer Space Treaty is brief. It is mainly made up of aspirational principles, not specific binding rules.
The central theme is apparent:
“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; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means; … the Moon and other celestial bodies shall be used exclusively for peaceful purposes; astronauts shall be regarded as the envoys of mankind;” (emphasis added)
Outer space and celestial bodies should not be used for the benefit of any single entity but, instead, the whole of humankind.
Mechanically, the Outer Space Treaty provides guiding principles for future treaties on space exploration; details are to be filled out by more specific, subsequent treaties. For example, the “Rescue Agreement” specifies the duties of signatories concerning stranded astronauts. Similarly, the “Liability Convention” outlines the liability of faulty space objects, and the “Registration Convention” governs the registration of space objects.
The final (seemingly most relevant) treaty, called “The Moon Agreement,” is a bit more complicated. The Moon Agreement was drafted to protect the moon and other celestial bodies from sovereign expansion and exploitation. It states that the moon and its resources are “the common heritage of mankind” and “shall [not] become property of any State, [organization, entity, or person].” However, the Moon Agreement was never signed by a major space-faring sovereign, like the US, Russia, or China. It cannot be used as a tool to examine the obligations of major space-faring sovereigns. Thus, the Outer Space Treaty is the sole instrument guiding the international community regarding territorial appropriation on the moon.
The Efficacy of the Outer Space Treaty
As noted above, the Outer Space Treaty has a clear, unambiguous principle prohibiting “national appropriation by claim of sovereignty” of the moon and other celestial bodies. However, it allows states to “explore and use outer space and celestial bodies.” This clause could very well be interpreted to permit the exploitation of resources on the moon. Additionally, the Outer Space Treaty allows sovereigns to retain jurisdiction over any objects they put into space and land on celestial bodies, meaning facilities and bases on the moon would be under the jurisdiction of the sovereign that sent them.
These aspects of the treaty raise several unanswered questions about what constitutes territorial appropriation in space. If a sovereign retains jurisdiction of a “research station” on the moon, how is that different from national appropriation? How much surface area around the station would they retain jurisdiction over? Will extraction facilities be mining valuable materials? How would creating an expansive moon base be any different from territorial appropriation of that area?
The treaty has a glaring inconsistency: it purports to reserve outer space for the benefit of all humankind, yet it allows sovereigns to control areas of space and extract resources from celestial bodies to their advantage in the future. Territory is valuable. Sovereigns have more than enough reason to challenge the boundaries of the Outer Space Treaty. Placing “defensive” weapons into low Earth orbit or building “scientific” bases on the moon might be the first step in that direction. Marshall, T. (2021). The Power of Geography: Ten Maps That Reveal the Future of Our World.
The Outer Space Treaty could be more effective. That is not to say that it is useless. Its language and principles continue to be influential. Thus far, all space-faring nations have adopted and upheld the principles outlined in the Outer Space Treaty. Even today, in the face of political tension and competing lunar programs, the international space station remains multinational, with astronauts from NASA, ESA, and Roscosmos uniting to carry out extraterrestrial research. Resources in space are abundant, and outer space is an endless expanse of unrestricted territory. The future of space exploration is not destined to decline into an outbreak of territorial conflicts. Despite its current deficiencies, international space law still has plenty of time, and space, to develop.
*The views expressed in this article do not represent the views of Santa Clara University.