How the New Race to the Moon Could Test the Boundaries of Current Space Law

As NASA gets closer to accomplishing their mission of returning astronauts to the moon through its Artemis Program, the world should start thinking about the potential international implications. With China hoping to be right behind the United States in establishing a presence on the moon, earthly international tensions between the two global powers may end up in outer space as well. While only time will tell whether space will be a place for peace, it is still important to think about how current space law will be tested in the future.

The Outer Space Treaty of 1967 (OST), which arguably is the only space treaty considered customary international law, establishes the legal foundation for a State’s space activities. (McGill & Freeland, ResearchGate). Article II of the Outer Space Treaty provides that the moon and other celestial bodies are not subject to national appropriation by claims of sovereignty, by use or occupation, or by any other means. (OST). Additionally, Article IV of the treaty states that the moon shall be used exclusively for peaceful purposes with the establishment of both military bases and maneuvers strictly forbidden. (OST). While some things have changed since the OST was signed such as the advances in technology and the presence of new space-faring countries, the international tensions surrounding mankind’s lunar endeavors have remained the same.

NASA’s development of the Artemis Program has led to the creation of the Artemis Accords, which is a “shared vision of principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy.” (NASA, Artemis Accords). As of Fall 2022, twenty countries have so far signed on to the Artemis Accords. (State.gov). However, while some view the Artemis Accords as an opportunity for international cooperation, others see it as the beginning of a new age of international competition. Although the Artemis Accords clarify the legal basis of space activities, they are not a treaty and do not create binding obligations under international law. (Deplano, 360info). Since the Accords are not international law they only apply to the United States and the other countries who intend to participate. (Deplano, 360info). However, the Artemis Accords could become customary practice in international law if a growing number of nations rely on its provisions to carry out space activities. (Deplano, 360info).

Russia and China have not signed on to the Artemis Accords because both countries view the accords as an effort to expand the U.S.-dominated international order to outer space. (Ben-Itzhak, Space Review). China specifically views NASA’s Artemis Program as a means to increase the United States’ prestige on the world stage and advance geopolitical interests. (ARSTechnica). Even if China changes its view and wants to sign the Artemis Accords, Congress passed an amendment in 2011 prohibiting NASA from using government funds to collaborate with China unless the activities are Congressionally approved. (Govinfo.gov, Stat. 124, Sec. 1340(a)). The amendment passed because there was concern that working with the Chinese National Space Agency, or CNSA, would result in espionage of the United States’ intellectual property. (Hawn, Responsible Statecraft).

Given China and Russia’s skepticism of the United States’ space endeavors, and vice versa, it is unsurprising the two countries have created their own Sino-Russian Lunar Agreement in 2021. (Ben-Itzhak, Space Review). The agreement serves as an alternative to NASA’s Artemis Program, and similarly the Sino-Russian mission also includes plans to build a base on the moon and to install a space station in lunar orbit. (Tanmay, EurAsian Times). With the emergence of these two separate agreements, concerns grow regarding whether the inability of countries to cooperate may risk not only an arms race, but a potential clash over the hundreds of billions of dollars’ worth of resources, both on the moon and elsewhere in space. (Einhorn, Bloomberg). These concerns could come to fruition, especially given that both China and NASA have planned missions targeting the lunar south pole in 2024. (Jones, IEEE Spectrum).  

The lunar south pole contains ice which makes it geographically significant because water is a critical resource for long-term space exploration. (Imster, EarthSky). Water from the moon can be used for drinking, cooling down equipment, breathing, and making rocket fuel for missions to Mars and beyond. (Imster, EarthSky). It has also been discovered that the moon contains an abundant supply of the very valuable element Helium-3. (EDinformatics). Helium-3 is a light and non-radioactive fusion fuel that is almost nonexistent on Earth. (EDinformatics). Experts estimate that the amount of Helium-3 on the moon is worth $1.543 quadrillion and could provide enough to power human energy needs for up to 10,000 years. (Carroll, International Policy Digest). Additionally, geological surveys of the moon show that rare earth metals are in plenty supply. (Clark, Science Focus). Rare earth metals are a key component of important technologies in both medicine and energy, and they are crucial in the manufacture of everyday high-tech devices. (The Universe). The race to space ultimately is a race of who can extract these resources first. This race raises the question of if national appropriation will occur regarding these valuable resources. Additionally, regardless of who the winner in the space race will be, the issue of national security interests will arise to protect the resources and the people involved in these missions. 

Increasing activities in space and the presence of U.S. personnel raises the question of what this may mean with the emergence of the U.S. Space Force and the role it might play in lunar activities. (Erwin, SpaceNews). In 2020, the Space Force was created as another branch of the United States’ military. (Space Force). The reason given for its creation is that “space has become essential to our security and prosperity- so much so that we need a branch of our military dedicated to its defense, just like we have branches of the military dedicated to protecting and securing the air, land, and sea.” (Space Force). The Space Force’s current role is defending U.S. satellites in Earth’s orbits, but some efforts are already underway to prepare for operations in the lunar environment. (Erwin, Space News). One such experiment includes the Cislunar Highway Patrol System (CHPS) which will investigate how the U.S. could monitor the region between the moon and Earth. (Erwin, Space News). Another possibility of a U.S. military presence in space would be for the effective rescue of astronauts and personnel in cases of accidents or distress. (David, Space.com). Even if it is not the Space Force, the United States could create a "Space Guard" that will be analogous to the Coast Guard to implement in-space rescue. (David, Space.com).

These types of suggestions and projects raise serious questions of the international repercussions, especially the question of how China will interpret these military efforts. Despite the Outer Space Treaty prohibition on the establishment of military bases and weapons on the moon, the race to the moon may turn into an arms race given all of the conditions exist for a so-called “security dilemma.” (Byers & Boley, Bulletin of the Atomic Scientists). A “security dilemma” occurs when one country will build up its military because there is imperfect information about the activities of a potential adversary. (Byers & Boley, Bulletin of the Atomic Scientists). Eric Desautels, a United States’ diplomat who participated in UN-led talks regarding space security said that the militarization of space is the new reality that the nation has to deal with, especially since space technologies increasingly are of dual-use nature so they can be easily weaponized. (Erwin, SpaceNews).

Current space law may be pushed to the limits in the near future. While a serious concern exists regarding a potential arms race and the militarization of the moon, there still is hope that embarking on a new frontier in space could create an environment of international collaboration. ​​As astronauts like to say, “From space you can’t see borders.” (Kluger, Time). As was seen between the U.S. and the U.S.S.R. jointly cooperating on the Apollo-Soyuz mission during the height of the Cold War, space could be the platform used to foster international cooperation even between adversaries. (Marshal & Hadfield, Time).