On April 6, President Donald Trump signed an executive order establishing a United States policy on the exploitation of off-Earth resources and more precisely, about the mining of the Moon and potentially using resources of other planets, such as Mars.[1] The question that arises here, is to know whether a country can claim a property of a planet and using its resources.

What happened and what are reasons to start the mining?

The White House states in the executive order that the water ice and other lunar resources will help the United States establish a long-term human presence on the moon.[2] Is is said as well that « Outer space is a legally and physically unique domain of human activity, and the United States does not view space as a global commons ».[3]

This new policy stresses the current regulatory regime established by the 1967 Outer Space Treaty which, allows the use of such resources.[4] In fact, the United States does not view space as a « global commons » and sees a clear path to off-Earth mining, without the need for further international treaty-level agreements.[5]

For example, the United States, like the other major spacefaring nations, has not signed the 1979 Moon Treaty[6], which regulates that non-scientific use of space resources be governed by an international regulatory framework. In 2015, the US Congress passed a law explicitly allowing American companies and US citizens to use moon and asteroid resources[7]

Over the last few years, the US space policy has evolved. In December 2017, President Trump signed Space Policy Directive-1 for the Artemis campaign.[8] Then, the Space Policy Directive-4, signed in February 2019, called for the creation of the Space Force, the first new U.S. military branch since the Air Force stood up in 1947.[9]

The order explained a NASA’s Artemis program for crewed lunar exploration, with the aim to land two astronauts on the moon in 2024.[10] In the program there is not only the Moon exploration but Mars is also considered. It is indeed a goal that NASA wants to achieve in the 2030’s.

Who owns the Moon?

In fact, space is an area without defined boundaries and very few judgements were rendered on spacecraft orbiting Earth and other celestial bodies.[11] However, several nations have agreed to a variety of policies and treaties about activities in space exploration.

The year following the launch of Sputnik by the Soviet Union in 1957, the United Nations General Assembly created an ad hoc Committee on the Peaceful Uses of Outer Space (COPUOUS). [12]Consequently, in 1960, the International Institute of Space Law, a nongovernmental organization, was created to promote cooperation in the space law-making process. [13]

The field of space law evolved to deal with questions such as property rights, weapons in space, protection of astronauts and related matters. A lot of private companies can now take part in space exploration, however these entities may not be covered under some existing treaties.

The Outer Space Treaty and other international regulations

The main treaty 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, or simply the « Outer Space Treaty. »[14] It was ratified in 1967, largely based on a set of legal principles the general assembly accepted in 1962.[15]

Among the main principles in this regard, we can highlight the ones related to the property of the moon. In fact, pace is free for all nations to explore, and sovereign claims cannot be made. Space activities must be realized for the benefit of all nations and humans. Therefore, nobody owns the moon. However « In this field, there are two other, there is still an issue of commercial expropriation of Moon resources ».[16]

In this field, there are two other legal documents, namely the 1979  “Moon Agreement », which gives more detail on the Outer Space Treaty for property rights and usage of the moon and other celestial bodies in the solar system.[17] In addition, the 1963 « Declaration of Legal Principles« , from which the Outer Space Treaty was created in 1967, lays down guiding principles, including the idea that space exploration is for the benefit of all humans.[18]

Mining rights of the United States in the Moon

In the United States, there are two major companies hoping to perform asteroid mining in the coming years, namely the Deep Space Industries and Planetary Resources. In 2015, the United States passed the U.S. Commercial Space Launch Competitiveness Act, which in a nutshell allows U.S. citizens to exploit asteroids and other space resources. [19]This makes resource hunting legal for U.S. citizens. However, some experts have said this could violate the Outer Space Treaty.

For the moment, the Outer Space Treaty states that space and celestial bodies cannot be claimed by other nations. Indeed, the U.S. Commercial Space Launch Competitiveness Act does not allow for territorial claims.[20] It is consequently unclear how exploitation rights and  property rights would work in the case of adjacent colonies.

How the project will work?

Not only the US will participate in it, but also commercial partners will participate in an « innovative and sustainable program » to « lead the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations. »[21] This long-term exploration of space will require commercial entities to recover and use resources, including certain minerals in outer space. As it stands, there is very little in the way of official legal status for materials harvested on the Moon.[22] Only France supported the idea of an international natural resource regime for the Moon and other celestial bodies established by a diplomatic conference. France even did so before the adoption of the 1979 Outer Space Treaty international legal framework is currently debated within the CUPEEA.[23]

At the moment, there is only one international reaction, Russia is ready to collaborate « In view of the initiatives that President Trump has presented, and he directly underlined in this memorandum the need to ensure international support for projects for the exploration, inter alia, of the Moon, in accordance with the Treaty of 1967, we consider this approach as a request and are ready to cooperate to find fully acceptable approaches ”Sergey Lavrov.[24]

Oleksandra Miroshnychenko
Master 1 International Law – University Jean Moulin Lyon 3

Footnotes

[1] Donald J Trump, Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, April 6, 2020, < https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/>

[2] Ibid.

[3] Donald J Trump, Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, April 6, 2020, < https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/>

[4]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967

[5]Mike Wall, “Trump signs executive order to support moon mining, tap asteroid resources”, 7tg od April 2020,< https://www.space.com/trump-moon-mining-space-resources-executive-order.html>

[6] Ibid.

[7]Space Resource Exploration and Utilization Act of 2015, Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015, 25 November 2015

[8] Jen Rae Wang, “New Space Policy Directive Calls for Human Expansion Across Solar System”, Dec. 11, 2017, <https://www.nasa.gov/press-release/new-space-policy-directive-calls-for-human-expansion-across-solar-system>

[9]Donald J Trump, Text of Space Policy Directive-4: Establishment of the United States Space Force, February 19, 2019,< https://www.whitehouse.gov/presidential-actions/text-space-policy-directive-4-establishment-united-states-space-force/>

[10]Donald J Trump, Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, April 6, 2020, < https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/>

[11]« Space Law 101: An Introduction to Space Law ». www.americanbar.org. Retrieved 2018-12-03

[12] « 1472 (XIV). International co-operation in the peaceful uses of outer space ». United Nations Office for Outer Space Affairs

[13]Gorove, Stephen (1979). « The Geostationary Orbit: Issues of Law and Policy ». The American Journal of International Law. 73 : pp.444–461

[14]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967

[15] Ibid.

[16]Mike Wall, “Trump signs executive order to support moon mining, tap asteroid resources”, 7tg od April 2020, < https://www.space.com/trump-moon-mining-space-resources-executive-order.html>

[17]Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. – Resolution 34/68 Adopted by the General Assembly. 89th plenary meeting; 5 December 1979

[18] Mike Wall, “Trump signs executive order to support moon mining, tap asteroid resources”, 7tg od April 2020, < https://www.space.com/trump-moon-mining-space-resources-executive-order.html>; Stephen Eric Mustow. (2018) Environmental impact assessment (EIA) screening and scoping of extraterrestrial exploration and development projects. Impact Assessment and Project Appraisal 36:6, pp 467-478

[19] Mike Wall, “Trump signs executive order to support moon mining, tap asteroid resources”, 7tg od April 2020, < https://www.space.com/trump-moon-mining-space-resources-executive-order.html>

[20]Squadron Leader KK Nair’s Space: The Frontiers of Modern Defence. Knowledge World Publishers, New Delhi, Chap. 5 « Examining Space Law… », pp. 84–104

[21] National Academies of Sciences, Engineering, and MedicineDivision on Engineering and Physical SciencesSpace Studies BoardCommittee on Astrobiology and Planetary Science, “Report Series: Committee on Astrobiology and Planetary Science: Review of the Planetary Science Aspects of NASA SMD’s Lunar Science and Exploration Initiative”, National Academies Press, 7 févr. 2019

[22] Lee, K. (1994) Awe and humility: intrinsic value in nature – beyond an earthbound environmental ethics, in: Attfield, R. & Belsey, A. Philosophy and the Natural Environment, Cambridge: Cambridge University Press, 89–101

[23] Assemblee Nationale, Question N° 1003 de M. Bastien Lachaud (La France insoumise – Seine-Saint-Denis ), 12/09/2017  < http://questions.assemblee-nationale.fr/q15/15-1003QE.htm>

[24] Interview with Sergei Lavrov, Minister for Foreign Affairs of the Russian Federation, given to the Russian and foreign media by videoconference on issues of the international agenda, Moscow, April 14, 2020, <https://www.mid.ru/fr/foreign_policy/news//asset_publisher/cKNonkJE02Bw/content/id/4099053>