This illustration is Lockheed Martin’s concept of a two-stage crewed lunar lander that NASA could use to go to the surface of the moon. The ascent module is derived from the Orion spacecraft to ensure quicker development. Credit: Lockheed Martin

Two recent op-eds in SpaceNews expound on a U.S. return to the moon but both miss the mark of why a U.S. return is essential. In his Feb. 3 op-ed, Louis Friedman opines the U.S. should set its sights on Mars instead of the moon and cites a peculiar rationale: the U.S. could lose a renewed race to the moon and hence suffer geopolitical embarrassment. Mr. Friedman’s concern veils the underlying rationale that funding for science interests would be affected by a concerted effort to return humans to the moon and establish a presence, whether it be within the timeline prescribed by the White House or at a later date.

A Feb. 17 op-ed by Giulo Prisco takes the contrary view that a return to the moon would confer many advantages. He also recognizes the geopolitical implications for the U.S. if China were to establish a presence before the United States. Yet, Mr. Prisco goes further to note such an event would not be disagreeable so long as one state took the initiative to establish a permanent human presence (i.e., the end justify the means or, in this case, the who). Both op-eds posit opposite viewpoints and comment on the geopolitical aspect of the failure, or a potential failure, of a U.S. return to the moon. Yet, both miss the mark on the genuine reason for a U.S. return to the moon: to reinforce and preserve the rule of law (i.e., free access to outer space).      

Citing the rule of law as a rationale for a U.S. return and a continued presence on the moon may be seen as posturing for underlying geopolitical ambitions. That’s unavoidable since geopolitics and international law are intertwined. The conjoining of geopolitical interests and international law brings into further play competing interests of what the rule of law will be. Geopolitics and international law in terrestrial domains shed light on how states might conduct themselves in other domains. Specifically, China’s activities in the South China Sea and national claims being made there in contravention to the United Nations Convention on the Law of the Sea demonstrates what a future could look like not only for the moon but the rule of law as well, including the Outer Space Treaty. This concern is most prevalent with the idea of space resources. The legal underpinning of space resources begins with a fundamental statement in Article II of the Outer Space Treaty that prohibits national appropriation of a celestial body, including the moon. This proscription also extends to private individuals under the authority of a state. This means traditional mining claims cannot be made by a state or a private citizen. The concept of space resource performs an end-run around this prohibition starting with the key assumption extractable resources upon or within a celestial body are not part of a celestial body. This idea takes advantage of the lack of language relating to mineral resources in Article II of the Outer Space Treaty and applies the concept of “use” found in Article I of the Outer Space Treaty.

The application of use in a space resource activity permits private individuals to collect and possess mineral resources, including water, through a novel application of use similar to gathering fish from the world’s oceans. In other words, the concept of space resources permits a private entity to perform the activity of gathering mineral resources from a celestial body, including the moon, and convert them to personal possession without laying claim to the celestial body itself, which makes space resources an activity that creates a property interest. However, the entitlement created by the idea of space resources that permits private individuals to gather and possess resources does not extend to states as that would be considered national appropriation and prohibited under Article II of the Outer Space Treaty.

This is the theory the United States has submitted as international law but has not yet been borne out in practice, which leaves a weak legal footing that could be exploited. The U.S. must return to the moon and establish a presence that will enable follow-on activities by private companies to perform space resource activities and harden the principle into international law. Uncertainty about space resources creates a vulnerability that can be exploited by China to change the dynamic of international law through customary international law that could unzip the prohibition against sovereign nations laying claim to celestial bodies and outer space in general, which would deny  free access. 

The key to exploiting this weakness lies in the relationship between the state and private companies in China. Private companies in China state-owned are seldom if at all privately owned as the state owns significant stakes and creates a private/state hybrid. This duality is effectively used when doing business in other countries as private Chinese companies frequently take advantage of state ownership to defend against lawsuits by applying sovereign immunity. China has been supportive of the idea of space resources and is rumored to be creating a domestic space law that would permit private individuals to obtain space resources. This means any activities to harvest space resources would be performed by a private Chinese company but would also have government ownership as a silent entity, which means a sovereign State would be appropriating space resources under the guise of a private entity, which is a violation of the principle in Article II of the Outer Space Treaty, which prohibits sovereign nations from laying claim to celestial bodies and outer space as a whole.If the U.S. fails to return to the moon and establish a presence to permit private companies to perform and cement the concept of space resources into the body of international law, China could use the vacuum to establish a presence and permit its private companies with their dual identity to perform space resource activities. If space resource activities involving a state are tolerated or not countered, China could create a customary norm of space resources, i.e., states performing space resource activities are not prohibited, that would give constructive claim of sovereignty over celestial bodies. This use of customary law would in turn lead to denial of free access in outer space in the same manner China is using customary law in the South China Sea to establish a sovereign presence and deny free access in the world’s oceans.

A U.S. return to the moon is not about replaying the Cold War space race, but rather about furthering a national interest to reaffirm the rule of law to preserve free access to outer space. Free access, which has been a principle of international law for over 50 years, is not only important for the United States, but other states as well. Justifying a return to the moon as an effort to preserve the rule of law and preserve free access to outer space will be criticized as flag waving and fear mongering at the expense of international cooperation. Yet, outer space like other domains is dominated by geopolitics despite platitudes of cooperation, which is subordinated to national interests and realpolitik. Indeed, outer space could become nationalized if the current rule of law is not reinforced. 

The United States is at a critical juncture, with Congress at the crux of the domestic tempest about a U.S. return to the moon. The effect on the rule of law must be taken into consideration in the debate about whether and by what means the United States should return to the moon and establish a presence.

Subordinating the rule of law to partisanship and special interest will surrender not only the national interests of the United States in outer space but the very body of international rule of law, including free access. Indeed, failure is possible, but it is better to risk failure and strive for the goal to return to and establish a permanent presence on the moon than sit on the wayside and hope the territorial dispute in the South China Sea doesn’t repeat itself on the moon or outer space in general. Congress is in the driver’s seat both through the NASA authorization bill before it and appropriations. Additionally, Congress might consider entertaining further legislation addressing space resource rights in conjunction with the Trump administration’s Executive Order, which articulates a specific position on the legal concept of space resources and preempts multilateral efforts to define the concept of space resources that would permit China to skirt the rule of law and make territorial gains contrary to the rule of law. 

A decision to support a human return to the moon to establish a permanent presence and maintain U.S. leadership in international law the U.S. with the decision to take action apart from partisan motives and special interests and make the commitment and investment that will give the rule of law in outer space a fighting chance. The alternative is to play politics and lose the legal and geopolitical battle, which will ensure the only outcome will be a South China Sea on the moon and in outer space and contentious congressional hearings lamenting why the U.S. did not act when it had the chance.

Michael J. Listner is an attorney, the founder and principal of the legal and policy think tank/consultation firm Space Law and Policy Solutions and the author and editor of the subscription space law and policy briefing-letter, The Précis.