APE-MPE publishes an article by Professor Manolis Pleionis (Director and Chairman of the Board of the National Observatory of Athens) and Anthis Koskina (Legal Space Law) regarding the intensifying international competition for the Moon’s resources, especially between the US and China. Their basic conclusion is that any exploitation of the resources of the planetary bodies (Moon, asteroids, etc.) should be both for the benefit of all the peoples of the planet, and in accordance with international law.

Here is the article:

Moon resources: the new field of international competition

There is a proliferation of op-eds (see ‘Can China get the Moon?’, News247, 3 January 2023) about the alleged new space competition between the US and China, akin to that between the US and the Soviet Union during the Cold War. Thus, it is argued ‒ here, by Bill Nelson, NASA director and former astronaut and Florida senator ‒ that China, building on its space successes (Chinese Tiangong Space Station, “Chang’e” missions, etc.) could to claim ownership of parts of the Moon, to strengthen its position.

According to Bill Nelson, if China establishes bases on the Moon, it may try to dominate the most mineral-rich parts of its surface, blocking access to other nations.

As the US has just announced NASA’s successful Artemis I mission – where an unmanned Orion spacecraft orbits the Moon – as a major first step in its plans to send astronauts to the Moon by the end of the decade, it follows that the two countries are at space race.

On the other hand, Chinese Foreign Ministry spokesman Zhao Lijian accuses Nelson of lying about China’s space ambitions, while recently, Yang Yuguang, senior controller of China’s space industry and vice-chairman of the International Astronautics’ space transportation committee Federation stated that: “We conduct spaceflight to develop high technology and improve economic development and people’s living standards. We are not participating in a space race with other countries, because competition from this point of view is meaningless”; “We have chosen the South Pole of the Moon as the location of our future research station, but this should not translate into “Chinese occupation” of the area… As long as your spaceship will not affect the safety of ours, you can place it wherever you like…”.

In fact, the issue of the exploitation of space resources is gaining increasing importance (according to Morgan Stanley and Bank of America, the value of the space market has increased by 70% since 2010), and therefore must be considered both from the point of view of its international regulation and the practice of the states so far.

Based on current international law, in principle, the answer to the question of whether it is legal for a state (or company) to appropriate territories or exploit deposits on planetary bodies is clearly negative. This follows from Article II of the Outer Space Treaty (OST, 1967) which states that outer space, the Moon and the celestial bodies are not subject to national appropriation by claims of sovereign rights, through use or occupation (occupation), or by any another medium. Of course, the possible exploitation of lunar resources is also regulated in the “Agreement on the Activities of States on the Moon and Other Celestial Bodies” (hereinafter, the Agreement), of 1979. There, it is stated that any activity on the Moon must be in accordance with the international law (and thus also the OST), for the benefit of international peace and security, taking due account of the relevant interests of all states parties, regardless of their economic or scientific development; it also stipulates that states undertake to establish an international regime for the proper and fair exploitation of the Moon’s resources, for the benefit of all.

Unfortunately, states have shown remarkable reluctance to join the Agreement, while major powers active in space – such as the US, China and Russia – have not ratified it. As a result, the possible activities of these countries on the Moon will be subject only to the general provisions of the OST. At the same time, the developments in space technology and the possibility of mining in asteroids on the one hand and the dominant business logic on the other, led to the opinion that the removal (through mining) of a part of it should not be considered appropriation of a uranium body, if it does not involve substantial damage or destruction thereof. Namely, that there is no violation of Article II of the OST, and the mining process should be considered acceptable.

Thus, the US was the first to promote the ban on OST (Article II) by adopting the US Commercial Space Launch Competitiveness Act (2015) to promote the in-situ exploitation of space resources, securing the right to own and exploit them for commercial purposes. Accordingly, Luxembourg adopted a law on the exploration and use of space resources (2017), under which space resources may be the subject of property rights.

These developments caused reactions even from the Council of the Land of Luxembourg, due to their supposed opposition to the fundamental rule of the OST (Article II), but also due to the difficulty of implementing a regulatory framework of mining and trading of space resources. It was argued that even if some mining right is secured ‒nationally‒, it will be impossible under international law to protect the mining area (on the asteroid or the Moon), but also the mined resources in case of dispute/confiscation by another state. However, the laws were adopted, in our view, arguing that the interpretation of the OST (Article II) should be adapted to commercial and business logic and the needs of industry, providing incentives to private initiative.

Therefore, although the recent international literature presents China as the one plotting the Moon’s resources, the truth is that the first to actually challenge the strictly restrictive international rules of the OST, with convenient legal interpretations and passed national legislations to allow them to exploit space resources for their own commercial benefit (essentially, master’s mind) on planetary bodies and therefore on the Moon, it is the USA and the Europeans, faithful one would say to their historical colonial legacy.

The inescapable conclusion is that US concern is not based on China’s possible violation of international law, as one might expect, but rather that China’s space technology (which is already planning deep space missions) poses a significant threat to US supremacy, as stated by the US Space Force’s Deputy Chief of Space Activities, David Thompson.

For us it is clear that any exploitation of resources of planetary bodies (Moon, asteroids, etc.) should be for the benefit of all the peoples of the planet and in accordance with international law, as it is defined in both the OST and the Moon Agreement.