Tuesday, October 20, 2020

Does the United States own the Moon?

The United States is the only country that has sent men to walk on the Moon, with 12 astronauts on 6 space missions between Apollo 11 (which landed on July 20, 1969) and Apollo 17 (which landed on December 11, 1972).  On each landing the astronauts planted a U.S. flag.  No other country has had men walk on the moon or planted flags there.

Does the US claim to own the moon through right of conquest?  There is the Moon Treaty which the US has not ratified and so which is effectively meaningless.  The US did sign the Outer Space Treaty, formally named  "the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies". This treaty provides that no nation can claim sovereignty of outer space or any celestial body.  So it seems that the answer is no.

However, does the Outer Space Treaty prevent the US from licensing companies to mine asteroids and the moon and effectively control it?  The US passed the Space Act of 2015 (formally known as the Commercial Space Competitiveness Act of 2015) which allows US citizens and industries to "engage in the commercial exploration and exploitation of space resources" including water and minerals.  This Act may violate the Outer Space Treaty, but who would decide that?  Could Russia sue the US in the International Court of Justice in The Hague and claim that the Space Act is a violation?  Maybe, but they haven't.  I would argue that the Space Act allows the US to effectively control the moon and asteroids as long as they don't formally claim sovereignty over them.  What is to stop any other country from passing a similar law?  Nothing, but none have except for Luxembourg, which passed an asteroid mining law in 2017. 

Critics of the Space Act claim that: Space exploration is a universal activity and therefore requires international regulation. The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbriddled commercial exploitation of outer-space resources. https://www.iflscience.com/space/who-owns-space-us-asteroid-mining-act-dangerous-and-potentially-illegal/

In 1856, the US passed the Guano Islands Act, which allowed U.S. citizens to take possession, in the name of the United States, of any unclaimed island anywhere on earth, so long as it contained guano.  I think there are certain commonalities between the Guano Islands Act and the Space Act.  We can imagine private space explorers roaming the galaxy looking for gold and minerals and flying the flag of either the United States or Luxembourg.

With this background, read the following article:  "For Sale: The Moon".  This editorial claims that NASA, through its Artemis Accords project, effectively claims ownership of the moon, and is creating private treaties with other countries that recognize this claim and want to share in the bounty.  And thus NASA is creating international space law, effectively violating the Outer Space Treaty and the role of the United Nations.

The Artemis Accords are not merely a code of conduct for foreign space agencies wishing to join NASA's moon program. They represent another prong in what has become a sustained American campaign to legislate international space law unilaterally. That NASA has begun to act as a diplomatic surrogate for the United Nations is a significant — and potentially harmful — milestone in the commercialization of outer space. --https://thehill.com/opinion/technology/521864-for-sale-the-moon

I think NASA would argue that this is a misinterpretation.  The Artemis Accords project is a joint program to land the next man and woman on the moon.  This will be done with the participation of Europe, Japan, Canada, Italy, Australia, UK and the United Arab Emirates.  And the Artemis Accords is their agreement to work together.

I think this is an interesting question - Is the Artemis Accords a "private international space law treaty" or is it just an agreement to go to the moon?  You can read the text of the Artemis Accords here: https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf

See also: https://arstechnica.com/science/2020/10/nasa-builds-support-for-artemis-by-signing-accords-with-seven-countries/

So, to answer the question posed by the title of this post - no, the US doesn't technically own the moon, but it does claims the right to control it, at least for the purpose of exploring it, mining it, and developing it commercially.


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