Space Education and Strategic Applications Journal
into orbit . The Moon Agreement , which suggests that States should consider developing a regulatory regime to govern lunar resource mining when such activity is likely to occur , has been ratified by only eighteen States . None of China , the U . S ., or Russia has done so . And indeed , in April 2020 , the US president released an Executive Order which made clear both : 1 ) the US unwillingness to enter into the Moon Agreement ; and 2 ) the U . S . strategy to object to “ any attempt to ... treat the Moon Agreement as reflecting or otherwise expressing customary international law .” 18
Negotiated during the Cold War essentially by the world ’ s two superpowers , the four widely ratified treaties reflect a remarkable — and to date successful — détente . The overriding concern was , as the name of the COPUOS suggests , peace . As they hammered out the Magna Carta for peace in space , the negotiators cannot be faulted for not considering an environment where , as today , private entities could perform all the space activities once reserved for State actors — and very few State actors at that . As a result , peace , collaboration and freedom 19 are the regime ’ s key principles while more mundane matters , in- cluding cultural heritage preservation and private resource mining and utilization are unaddressed .
That said , the activities of private entities are not entirely overlooked . Article VI of the Outer Space Treaty makes it quite clear that States bear “ international responsibility for national activities in outer space ... whether such activities are carried on by governmental agencies or by non-governmental entities .” 20 The Article further indicates that States must assure that all “ national activities are carried out in conformity with the provisions set forth ” 21 in the Treaty .
B . Appropriation “ By Any Other Means ”
Article II of the Outer Space Treaty indicates that “[ o ] uter space , including the Moon and other celestial bodies , is not subject to national appropriation by claim of sovereignty , by means of use or occupation or by any other means .” 22 It is a principal so embedded in the bedrock of space exploration as to be considered by many to be not just a treaty obligation but customary international law . 23 However , the concept of “ by any
18 Exec . Order No . 13914 , 85 Fed . Reg . 20,381 ( Apr . 6 , 2020 ), https :// www . govinfo . gov / content / pkg / FR-2020-04-10 / pdf / 2020-07800 . pdf .
19 The first Article encompasses three foundational aspects of all space activities : the exploration and use of space is the “ province ” of all humankind ; space , including the Moon and other celestial bodies “ shall be free for exploration and use by all States ;” and “ States shall facilitate and encourage international co-operation ” in scientific investigation . Outer Space Treaty , supra note 6 , art . I . Article IV avers that “ the Moon and other celestial bodies shall be used ... exclusively for peaceful purposes .” Id . art IV .
20 Id . art VI . 21 Id . 22 Id . art II . 23 Fabio Tronchetti , The Non-Appropriation Principle Under Attack : Using Article II of the Outer
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