Space Property Rights and the Future of American Space Travel

By Aidan Poling,
Published by Georgetown Security Studies Review, 4 March 2022

January 27th, 1967 has a bitter-sweet legacy in the history of space travel. In Cape Canaveral Florida, Gus Grissom, Ed White, and Roger Chafee were killed during a rehearsal for the inaugural flight of the Apollo program. The same day the United States, Soviet Union, and the United Kingdom endeavored to forge a peaceful future for the exploration and utilization of space by signing the Outer Space Treaty. Only two years later, the astronauts of Apollo 11 would plant the American flag on the surface of the moon. Whereas in previous ages of explorations sovereignty followed the flag, due to the treaty negotiated two years prior, U.S. sovereignty would not extend to the moon. Instead, the moon remained “the province of all mankind.”

Over 50 years later, America is once again looking to put man (and woman) on the moon as a part of the Artemis program. However, this new program promises to be incredibly different than the Apollo program. For one, it is extensively harnessing the ingenuity and efficiencies of the private sector to enable America’s return to the moon at a fraction of the cost of Apollo. For another, it radically reinterprets the Outer Space Treaty by flinging open the door to space resource extraction.

The Outer Space Treaty has served as the basis of international space law since it was signed in 1967. Among its numerous provisions, the Outer Space Treaty states that “the exploration and use of space…shall be carried out for the benefit and use of all mankind.” It also states that “outer space… is not subject national appropriation by claim of sovereignty” or “by means of use or occupation.”

Recognizing the value of extractable space resources—rare earth minerals, water, platinum, and gold, or Helium-3—the United States has endeavored to circumvent this prohibition. The United States has done so by arguing that space resources can be extracted by nations and corporations without making a claim to possess the underlying sovereignty of the celestial bodies involved. This legal doctrine was first formalized under the 2015 U.S Commercial Space Launch Competitiveness Act (H.R. 2262) which asserts that “a United States citizen engaged in commercial recovery of an asteroid resource or a space resource… shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource.” H.R. 2262 then walks the legal tightrope by stating that the act does not equate to the United States “assert[ing] sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

U.S executive action has furthered this conceptualization of space property rights. In December of 2017, the Trump administration put out Space Policy Directive 1 (SPD 1) which called for “an innovative and sustainable program of exploration with commercial and international partners to enable human expansion across the solar system and to bring back to Earth new knowledge and opportunities.” As a result, NASA is now tasked with establishing a long-term presence on the moon prior to attempting manned missions to Mars. Notably, SPD 1 represented a substantial shift away from largely scientific goals and towards long-term commercial utilization of space. SPD 1 was built on by Executive Order 13914, which noted that “uncertainty regarding the right to recover and use space resources, including the extension of the right to commercial recovery and use of lunar resources, however, has discouraged some commercial entities from participating in this enterprise.” To remedy this, the EO explicitly rejected the anti-extraction interpretation of the appropriation clause of the Outer Space Treaty. It formally made it U.S policy to not consider space a “global common” but rather a domain available for both public and private “recovery and use of space resources.”

The Trump administration’s National Space Policy, released in December 2020, reaffirmed this position by emphasizing that celestial bodies are not subject to “national appropriation” but that “the United States will pursue the extraction and utilization of space resources in compliance with applicable law.” The NSP also directed the Secretary of State to “Encourage international support for the recovery and use of outer space resources.”

Gathering this support has primarily taken the form of the joint State Department-NASA initiative known as the Artemis Accords. This framework aims to create mutual understanding regarding the norms of peaceful space exploration and utilization. The Accords encompass a broad range of issues ranging from addressing space debris to space traffic. The most notable addition the Accords make to international law is their recognition that “the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty” and as such gives additional certainty for companies planning to conduct space mining missions.

A growing number of spacefaring nations are following the United States’ lead by either passing domestic legislation or signing onto the Artemis Accords. Thus far Luxemburg (2017), the UAE (2019) and Japan (2021) have passed domestic legislation that legalizes space resource extraction. Sixteen nations (including the three previously mentioned) have also agreed to the Artemis Accords.

Notably absent from the fifteen signatories are Russia and China. Both nations have expressed distrust regarding what they see as a U.S attempt to secure private ownership of lunar resources. Dmitry Rogozin, head of the Russian space agency noted bitterly that “the principle of invasion is the same, whether it be the Moon or Iraq.” Song Zhongping, a Chinese military, and aerospace commentator argued that “The U.S. is developing a new space version of an ‘Enclosure Movement,’ in pursuit of colonization and claiming sovereignty over the moon.”

However, figures in both Russia and China recognize the clear benefits that spacefaring nations could enjoy by allowing the private exploitation of space resources. Yevgeny Kuznetsov, director of subsidiary funds at the Russian Venture Company, a state investment vehicle, notes that “The [Russian government] has two choices: to declare itself a stick-in-the-mud and get left behind, or get ahead like the adventurists, and support them either in terms of technology or legislation. According to Goswami and Garretson, China views the moon as a staging area from which it can “build industrial capacity… to then accomplish its goals of asteroid mining, deep space exploration, and exploitation.” This ambition extends as far as possibly capturing and mining near-earth object asteroids.

The apparent gap between Russia and China condemning the Artemis program and Accords while simultaneously recognizing and attempting to harness the potential of space resources can likely be explained by the fact that the U.S space program, driven by its commercial sector, is likely to beat Russia and China to the establishing a prolonged lunar presence. Rejecting the legality of space resource extraction may thus be seen as an attempt to undermine confidence in the long-term viability of the private space sector, discourage Western private investment, and thereby buy time for the Russian and Chinese sectors to catch up.

The Biden administration must ensure that the United States continues to lead in the development of the space frontier. The administration’s record has thus far been lackluster. The only definitive actions it has taken have been to maintain Trump-era space policies on the Artemis program and Artemis Accords. However, the administration has also allowed a subtle reversion to the pre-2015 status quo. The Biden administration’s Space Priorities Framework deemphasized the role of commercial partnerships and resource extraction, referencing it in passing only after first extolled the importance of space as a means of combating climate change, demonstrating American leadership, and inspiring the world.

In last Tuesday’s State of the Union, President Biden extolled the Bipartisan Infrastructure Bill as enabling America “to win the economic competition of the 21st Century that we face with the rest of the world—particularly with China.” However, he neglected to make any mention of the U.S developing space infrastructure to similarly enable the U.S to outcompete China in space. In the 2021 Space Industrial Base Report, a group of leading academics, industry, and government space professionals urged the creation of a “Space Superhighway” of refueling, repair, and communication hubs. This space infrastructure network would enable the creation of a cislunar space economy in the same way that the intercontinental railroad opened the American West in the 19th-century.

Before taking this sort of concrete step, however, the Biden administration must first decide to lead. In the State of the Union, Biden rightly declared the need for a “moonshot” to cure cancer but sadly neglected to mention the moon itself. Space policy, more than simply being inspiring and scientifically enriching, has the potential to supercharge America’s economy and strengthen it on the world stage. Greg Autry, a professor of space policy and business at Arizona State University, notes “This is the tipping point in the space economy. This is like 1998 for the internet… Imagine where we would be if we only viewed the internet as a scientific tool instead of the brilliant choice by the Clinton administration to view it as an e-commerce tool.” The Space Industrial Base Report also highlighted the importance of long term “vision” as critical to catalyzing national and allied effort across the public and private sectors. Decisive presidential leadership would enable the U.S to secure commercial dominance in space for the coming century.

See: Original Article