The Conversation (Australia): who owns the Moon and its resources?

15 Jul Mars needs to go to the UAE mission of Hope, followed by Chinese Tianwen-1 and American Mars 2020: launch is scheduled for 23 and 30 July. Moreover, the United States prepares to return humans to the moon in 2024, and in the space industry there are private players such as SpaceX. Activation of the conquest of space once again acutely raise the question of the ownership of planets and asteroids, as well as terms of use.

Extraction of natural resources of celestial bodies

The prospect of the development of mankind natural resources of celestial bodies may seem to be provocative today, when the world begins to realize the dark side of excessive exploitation of the resources of our own planet.

American Artemis program to return humans to the moon by 2024 (prelude to a more distant target for the conquest of Mars) suggests that a viable and sustainable exploration of the moon and Mars will rely on the use of their natural resources.

With this activity also involves a lot of legal problems in the first place, the next question is: is it possible to develop space resources from the legal point of view, and who makes the decisions in this area?

The uncertain international legal framework

International space law was developed in the era of space conquest in 1960s-1970s years in a specialized UN Committee on the peaceful uses of outer space. His first binding manifestation was the outer space Treaty of 1967, or in the full form, “Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies”.

This document was ratified by most of the States, including the major space powers: USA, Russia, China, France and Japan. It is based on the principle of freedom of exploration and use of outer space, which is “the province of all mankind”.

Whatever it was, the agreement limits this freedom to protect the space and the heavenly bodies from such things as war and territorial predation. Thus, the exploration and use of outer space can be carried out only for peaceful purposes, that from the point of view of the States does not prohibit the placement of satellites to national security.

That is, the Treaty prohibits the appropriation of celestial bodies. At the same time industrial and commercial development of the resources of celestial bodies, apparently, will have to rely on it. How does the extraction of resources and the principle of non-possession of the heavenly bodies?

The moon is the common heritage of mankind?

In conclusion, in 1979 another international Treaty establishes two additional principles. On the one hand, the Moon, other celestial bodies and their natural resources may be a property of States, international organizations, national organizations and individuals. on the other hand, the States undertake to establish an international regime to govern the exploitation of natural resources of the moon and other celestial bodies when this development will be possible. In particular, it must ensure equal distribution among all participating States profit from these resources, with special attention to the interests and needs of developing countries. Almost collectivist orientation of the second agreement greatly undermined the prospect of its adoption by the international community, primarily the United States. At the moment it was signed by only 18 countries, among which there is no great cosmic powers.

The first US preparing for battle

In early 2010-ies of the prospect of the development of space assets in the United States received the material embodiment in the face of private companies such as Planetary Resources, and reports of expert groups on private property in space.

Passed in November 2015 in the US, the cosmic law permits involved in the development of space assets for U.S. citizens to fully enjoy them, which includes the possession, ownership, transportation, use and sale. The United States believes that such activity does not violate the principles of the outer space Treaty in the sense that American citizens will own not by heavenly bodies, but only resources after their extraction.

A substantial portion of legal experts is considered doubtful that the contract may allow the appropriation of resources of celestial bodies.

To make a clear decision in this legal dispute is problematic. The problems of development of space natural resources were not in the era of the outer space Treaty, and his concise wording does not allow for a response to the challenges currently legal issues.

Other States go the same way, the UN is confused

In 2017 Luxembourg went the way of the United States and passed a law that openly allows for the possession of space resources. In February 2020, similar steps were taken by the UAE, an emerging player in the space industry.

The UN began consideration of the issue in 2016, but so far all the work is reduced to the exchange of views between States, and a specialized Committee has no powers that would allow to start any kind of normative work. States in turn have very different points of view: some, including Russia, strongly oppose national initiatives at the unilateral regulation of such activities.

A number of countries, particularly France, considers that the UN Committee is a competent authority and should conduct in-depth work to regulate the exploitation of space resources. Alas, the offer of several European States on formation of the working group is that nothing is given because of a lack of consensus.

This inability to run in the multilateral legal initiative can be traced across space-related new issues, which leaves room for national initiatives and one-sided approach.

Artemis Accords — the decline of international space law?

Especially in the US, the work is gaining momentum: April 6, 2020 was signed by presidential decree, which confirms the cosmic law of 2015 and the right of American citizens to own space resources. In addition, it was expressed the intention to come to a common position on the use of space resources and to sign the relevant agreements with the countries-partners. A few days later all this was reflected in the initiative of Artemis Accords.

It involves the signing of bilateral treaties between the United States and partners for approval the General principles of exploration and use of the moon and potentially Mars. These agreements are, without doubt, will be a pre-condition for States to participate in the program. The exploitation of natural resources will, of course, raised a number of contract issues as the security zone that NASA consider necessary for this activity.

NASA has repeatedly noted that the activities on celestial bodies should fully comply with existing international law, in particular the outer space Treaty of 1967. Now, when the USA is out of the range of international agreements and questioned the legitimacy of some international organizations such as who and the international criminal court, I am glad that they are not going to deviate from the rules, which to date has provided the peaceful uses of near-earth space States and space operators.

Anyway, the formalization of General principles around the US casts doubt on UN multilateralism: the UN Committee on outer space was until recently the only platform that is engaged in the development applicable to space activities of international norms. Artemis Accords fill left by the 1967 Treaty gaps and create legal norms for space activities without the potential of multilateral instruments. In addition, the bargaining power of potential partners of the United States will certainly be very limited. That is, all of this will be a contract on behalf of the American views on regulation of human activities on celestial bodies.

The initiative has already resulted in quite a sharp reaction in the world: for example, the Director of the Roscosmos compared it to the invasion of Iraq and Afghanistan. All of it promises a heated debate space powers in the UN.