Bilateral agreements renew debate over private exploitation of outer space resources.
Who owns the Moon? The longstanding international consensus has been that no one does. But the United States and seven other nations recently agreed on a policy shift: No one owns the entire Moon, though governments and private actors can own natural lunar resources.
The National Aeronautics and Space Administration (NASA) recently announced a set of bilateral agreements called the Artemis Accords. The European Space Administration joined in soon after, declaring Europe’s intention to collaborate with NASA on the Artemis program. Through this program, NASA and its partner space agencies seek to develop a stable human presence on the Moon and travel to Mars.
The Artemis Accords require that signatory nations comply with existing international law. There is no international agreement besides the Accords, however, that expressly allows for ownership of natural space resources. As a result, the signatories are operating in a legal grey area: Since so few countries have signed on, it is unclear how much practical effect the Accords will have.
The United States has long pushed for broad acceptance of this ownership model, arguing that it does not violate international law. As President Donald J. Trump laid out in an executive order issued earlier this year, the United States rejects the idea that space belongs to all Earthlings collectively. Instead, presidential administrations have advocated treating space in a similar manner to our planet’s oceans—no country can claim sovereignty over them, but public and private actors may claim ownership of ocean resources they extract.
In line with this ownership model, a 2015 federal law permits American corporations to “possess, own, transport, use, and sell” any space resources they recover in accordance with the United States’ “international obligations.”
These obligations include the 1967 Outer Space Treaty—the foundational document of international space law. Article II of the treaty prohibits attempts to establish sovereignty over the Moon or any other celestial body. The signatories of the Artemis Accords reaffirm the principles contained in the Outer Space Treaty and assert that resource extraction does not constitute “national appropriation” of space.
Some space lawyers and scholars are not so sure, though, whether the Artemis Accords are in line with the Outer Space Treaty. Since the Artemis program originated with NASA, they argue that the accords are a vehicle for the United States to assert control over space activity. The accords meet the letter of the Outer Space Treaty, but opponents worry that the bilateral agreements undermine the commitment to resource sharing and collective action that animates the spirit of the Outer Space Treaty. They predict that nations and commercial outfits will clash over the use of prime mining spots.
Even without skirmishes over who gets the best plot of lunar soil, national governments may not be equipped to handle an explosion of commercial activity in space. There is no international space agency to coordinate national regulation efforts or oversee the emerging space economy. In addition, the accords lack an enforcement provision. Instead, the accords require signatories to make a “political commitment” to upholding the accords’ principles.
Supporters of the Artemis Accords counter that the new agreements will help to ensure that space exploration and resource extraction can be sustainable. Jim Bridenstine, NASA’s current administrator, describes the accords as “operationalizing” the Outer Space Treaty and providing a framework for future cooperation. Section 11 of the accords, for example, requires signatories and the private actors under their legal jurisdiction to establish “safety zones” around their areas of operation to prevent one group’s work from interfering with another’s.
Companies in the emerging commercial space industry have long called for this kind of framework, arguing that existing international space law is too ambiguous to allow for peaceful and stable development.
One remaining source of ambiguity is the 1979 Moon Agreement, which contradicts the Artemis Accords but which no major spacefaring power ever signed. The Moon Agreement would preclude governments or private actors from claiming ownership of natural resources on the Moon or another celestial body. Despite lacking widespread support when drafted, the Moon Agreement is currently a subject of active discussion within the United Nations Committee on the Peaceful Uses of Outer Space.
Faced with the prospect of a revitalized international effort to forbid private space activity, some space policy experts and commercial space industry members expressed relief that President Trump’s executive order made the United States’ opposition to the Moon Agreement unequivocal.
Although the United States’ position is clear, the international legal environment remains anything but clear. With the Moon Agreement and other space governance efforts still under discussion, it is difficult to predict how many other nations will join the Artemis Accords.
Russia has signaled that it will not join the Artemis program, and federal law bars the United States from entering into bilateral agreements with China. In addition, with a viral pandemic still devastating lives and livelihoods across the planet, nations with less wealth may find that they cannot afford to fund a space agency.
Even if no other nations join the accords, the agreements have nevertheless introduced a new chapter in the history of humankind among the stars. Perhaps a robust space economy could emerge in the near future.
