Charting the Course: What Donald Trump’s Re-election May Mean for U.S. Leadership in International Space Law

In 2020, President Donald J. Trump articulated U.S. policy to encourage “public and private recovery and use of resources in outer space,” and to seek international support in doing so.[1] The Executive Order itself reaffirmed the 2015 U.S. Commercial Space Launch Competitiveness Act (“The Space Act”), which entitled American individuals and corporations to any asteroid resource or space resource they obtained, including rights to possess, own, transport, use, and sell such resources.[2] At the time of its passage, The Space Act was a massive victory for private space companies which had long been frustrated by legal uncertainties regarding space mining.[3]

Shortly after President Trump’s Executive Order, the United States National Aeronautics and Space Administration (NASA) awarded four contracts to commercial companies to collect lunar resources as part of its ongoing Artemis program, which President Trump also mandated.[4] Those contracts marked the first ever payment to a company to mine the Moon as part of NASA’s Artemis program, in which it plans to establish a lunar base. [5] While once a notion of science fiction, the idea of colonizing the Moon is very much real and preparations are happening now. The Artemis program is expected to cost a total of ninety-three billion dollars by 2025, with sixty-three billion dollars going towards private contracts.[6]

Why is this important? Why is the U.S. investing so heavily into spacefaring capabilities now? The answer is that the international community — with the major players being the U.S., Russia, and China — is amid a new space race. And successful colonization of the Moon, as international affairs expert Tim Marshall puts it, will “give a country, or an alliance, advantages similar to those enjoyed by maritime powers in previous ages… those who pave the way will set parameters others may be expected to follow.”[7] To win the race, these private contractors need a legal regime allowing them to sell extracted resources to NASA (and one day, in a commercial lunar market).

Traditional international space law is derived from the Outer Space Treaty (OST), which prohibits national appropriation of any celestial body, and refers to space as “the province of mankind.”[8] However, in an apparent contradiction, it also provides for the free “use” of outer space, leaving the international community puzzled as to the extent to which it restricts property rights.[9] The Space Act was controversial, and chief among criticisms was that it represented a reckless, unilateral move on the part of the U.S. to fill the gaps of the OST— indeed, international law is established through treaty and through custom, or a combination of both.[10] The U.S. seemed to make another attempt to develop international law through generating relevant “practice” by passing the Artemis Accords in 2020, which express the “desir[e] to implement the provisions of the Outer Space Treaty” in a way the U.S. deems fit.[11] The U.S. expects the Accords to have a norm-making effect and develop customary international law through them.[12] It is likely that they will, as the U.S. is technologically closer to returning astronauts to the Moon than Russia and China, both of whom have their own competing programs.[13]

Russia and China have protested the Artemis Accords, and there are signs that the two countries will work together to attempt to undermine them.[14] The result of this competition could be an “entrenched controversy,” with smaller nations aligning under the lawmaking of either the United States or of Russia and China.[15] It is imperative that the U.S. continues to chart the course (i.e., establish custom) of international space law as the lunar economy begins to boom, lest it cede that leadership role to autocracies. The Trump administration focused heavily on bolstering the American space program, so one could thus expect further norm-setting measures in President Trump’s upcoming second coming term.[16]

Samuel Grossman is a staff member of Fordham International Law Journal Volume XLVIII.

[1] See Exec. Order No. 13914, 85 Fed. Reg. 20, 381 (Apr. 6, 2020).

[2] See U.S. Commercial Space Launch Competitiveness Act, Pub. L. 114-90, 129 Stat. 704 (2015).

[3] See, e.g., Exploring Our Solar System: The ASTEROIDS Act as a Key Step: Hearing on H.R. 5063 Before the Subcomm. on Space of the H. Comm. on Sci., Space, and Tech., 113th Cong. 13-14 (2014) (statement of Rep. Bill Posey, cosponsor) ("Today, private companies do not have legal certainty that if they obtain resources from an asteroid that they can own them.”); Letter from Berin Szoka, President, TechFreedom, to Rep. Bill Posey (May 19, 2015) (“The technologies needed to open the space frontier to sustainable settlement will never be developed, let alone deployed, unless investors know that they have enforceable rights to the fruits of their investments and the ability to operate peacefully without interference. Without effective property rights, the vast resources of the moons, planets and asteroids of our Solar System will benefit no one.”) available at http://docs.techfreedom.org/TF_Letter_Re_Amendments_to_HR_1508.pdf.

[4] See Press Release, NASA, NASA Selects Companies to Collect Lunar Resources for Artemis Demonstrations (Dec. 3, 2020), https://www.nasa.gov/news-release/nasa-selects-companies-to-collect-lunar-resources-for-artemis-demonstrations/#:~:text=NASA%20has%20selected%20four%20companies,and%20ispace%20Japan%20of%20Tokyo; Presidential Memorandum on Reinvigorating America’s Human Space Exploration Program, 2017 Daily Comp. Pres. Doc. 201700902 (Dec. 11, 2017).

[5] See id.; see also Michael Sheetz, NASA will pay a company $1 to collect moon rocks, CNBC (Dec. 3, 2020) (“Lunar Outpost was able to bid $1 because the company was already planning to collect lunar material, so segregating some regolith for NASA ‘was in fact trivial.’”) https://www.cnbc.com/2020/12/03/nasa-will-pay-a-company-1-to-collect-moon-rocks.html.

[6] See NASA Office of Inspector General, NASA’s Transition of the Space Launch System to a Commercial Services Contract, IG-24-001, at 3 (2023).

[7] Tim Marshall, The Future of Geography: How Power and Politics in Space Will Change Our World, 77-78 (2023).

[8] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, at arts. I, II.

[9] Id. at art. I.

[10] See, e.g., Amanda M. Leon, Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources, 104 VA. L. Rev. 497, 508 (2018).

[11] Melissa J. Durkee, Space Law as Twenty-First Century International Law, 6 Penn.  J. L. & Innovation 1, 16 (2023).

[12] See id. at 14.

[13] See Artemis, NASA https://www.nasa.gov/feature/artemis/ (last visited Oct. 18, 2024 7:19PM).

[14] See Henry Olsen, China and Russia’s Proposed Lunar Research Station Is an Ominous Sign for the West, Wash. Post (Mar. 12, 2021), https://www.washingtonpost.com/opinions/2021/03/12/china-russias-proposed-lunar-

research-station-is-an-ominous-sign-west/.

[15] See Durkee, supra note 10, at 19.

[16] See Filip Timotija, Buzz Aldrin endorses Trump reelection bid, The Hill (Oct. 20, 2024 2:57 PM) (“Over the years, I have seen our government’s approach to space wax and wane, a fluctuating dynamic that has disappointed me from time to time,” Aldrin said in a statement released Wednesday. “But under the first Trump Administration, I was impressed to see how human space exploration was elevated, made a policy of high importance again.”) https://thehill.com/homenews/campaign/4962245-buzz-aldrin-endorses-trump-reelection/.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.