Guest Post: CDR Tracy Reynolds on “China & the Moon & the Law”
In today’s post Navy CDR Tracy Reynolds, speaking in her personal capacity, educates us about the risk to the rules based international order the U.S. and the international community face as China’s ambitions – and capabilities – in outer space grow.
CDR Reynolds explains that a key principle of the Outer Space Treaty (OST)–to which China is a party–is that “Outer Space (including the Moon) is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by other means.”
Will China abide by the OST? Tracy is skeptical given the experience with China’s violations of the UN Convention on the Law of the Sea (UNCLOS) to which it is also a party.
Specifically, she says “China’s disregard for international legal concepts in the maritime environment, as illustrated by Chinese activities in the South China Sea, are likely predictive of future Chinese activities on the Moon and in Outer Space.”
She further explains how Chinese lawfare informs the situation:
China will either disregard their legal obligations entirely or argue that their actions are in accordance with any applicable international law.
That’s Chinese lawfare: yes, we signed and ratified those treaties; no, those legal requirements are not applicable to our actions; and even if those laws were applicable, we are acting within our legal obligations and are a model of adherence to the rule of law. Rinse, wash, repeat.
She also goes on to warn:
The international community should not react to Chinese activities on the Moon. Instead, States should be proactive and vigorously advocate for China to respect OST legal obligations.
Tracy’s name may be familiar to Lawfire® readers as she has written for us before, and has been a LENS Conference speaker. Now working on her PhD in space law, she is a rising scholar-to-watch not only because of her very obvious expertise, but also because of the clarity with which she expresses complex legal matters.
You need to know about this burgeoning issue, so be sure to read CDR Reynolds’ essay!
China & the Moon & the Law
by
CDR Tracy L. Reynolds, JAGC, USN*
Bill Nelson, former Astronaut and Florida Senator, now NASA administrator, recently[1] warned the US and the international community that China’s ambitions on the Moon would likely be modeled on Chinese actions in the South China Sea. He’s right. China’s disregard for international legal concepts in the maritime environment, as illustrated by Chinese activities in the South China Sea, are likely predictive of future Chinese activities on the Moon and in Outer Space.
Just as China disregarded the 2016 South China Sea arbitration award, China is likely to pay no mind to legal requirements expressed in the Outer Space Treaty or customary international law.
China will either disregard their legal obligations entirely or argue that their actions are in accordance with any applicable international law.
That’s Chinese lawfare: yes, we signed and ratified those treaties; no, those legal requirements are not applicable to our actions; and even if those laws were applicable, we are acting within our legal obligations and are a model of adherence to the rule of law. Rinse, wash, repeat.
What are China’s international legal obligations at sea and in space?
China’s legal obligations include both international treaty law and customary international law. China is a State party to the UN Convention on the Law of the Sea (UNCLOS) and the Outer Space Treaty (OST).[2]
All treaty State parties have a legal obligation to act in accordance with the treaties to which they are a party. States also have legal obligations to abide by customary international law unless that State has publicly stated that they consider a particular concept not to be reflective of customary international law.
UNCLOS is the international treaty regime specific to the maritime environment. While the US is not a State party, the US perspective is that UNCLOS reflects customary international law. In particular, as UNCLOS relates to areas outside the jurisdiction of any one State. The maritime environment is not the only domain that includes areas where no one State has primacy. Others include Outer Space, international air space, and the electromagnetic spectrum. US military doctrine expressly requires that US military activities abide by UNCLOS where UNCLOS reflects custom.
The space law treaty regime successfully established the foundational legal framework for human activities in Outer Space. Since negotiation and coming into force in 1967, the Outer Space Treaty has withstood challenges to core tenets and has served as the launch pad for decades of space law policy discussions.
Since space settlement is so new, how do we know what law to apply?
China’s Moon ambitions are certainly not the first State movements toward Outer Space settlement. States and private companies are contemplating human settlement in Outer Space, including settlements on the Moon and Mars.[3] However, China’s planned Moon base, and any other permanent human settlements, will be founded where no person has lived and no State has primary jurisdiction.
UNCLOS articulates legal obligations in areas outside the jurisdiction of any one State, specifically international waters and international air space.
Comparing the application of law in one area outside the jurisdiction of any one State can provide insights into how similar legal principles may be applied in another such area.
Legal interpretation by analogy is an appropriate and potentially productive area of research. Comparing China’s adherence to international legal obligations in the South China Sea provides contextual guidance on China’s future adherence to legal obligations in Outer Space.
How can we predict China’s adherence to international legal obligations? The South China Sea.
While OST has been in effect since 1957, there have been limited opportunities for application of this law to real world events. Limited instances of application and limited State practice have prevented Outer Space law from growing in substance and specificity.
However, the global community need only look to China’s participation and reaction to the 2016 South China Sea arbitral reward to forecast China’s adherence to their legal obligations on the Moon.
The 2016 Arbitral Tribunal convened pursuant to jurisdiction under UNCLOS Annex VII considered arguments made by the Philippines regarding Chinese actions in the South China Sea.[4]
The UNCLOS South China Sea tribunal found China’s arguments for jurisdiction over contested maritime features in the South China Sea had no basis in law. The Tribunal found that the contested maritime features are under the exclusive jurisdiction of the Philippines.
China’s response was “no thank you.” China has continued to act as if these features are under China’s exclusive jurisdiction. China’s position also remains that the tribunal’s award has no legal impact upon China as the tribunal had no jurisdiction over China.
Application opportunities, such as the one currently at hand, will serve as a forcing function to determine how the Outer Space legal regime applies to a particular problem set. China’s plans for the Moon present an opportunity for application that will set the stage for additional applications of Outer Space law to State activities in Outer Space.
What does all this mean for China’s activities on the Moon?
The OST provides the basic framework on international space law, including the principle that Outer Space (including the Moon) is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by other means.
OST State parties are also required to avoid contamination of space and celestial bodies.[5] State treaty parties are required to explore and use Outer Space in accordance with international law, be guided by the principle of co-operation and mutual assistance, and conduct all activities in Outer Space with due regard to the corresponding interests of all other State parties.[6]
China is a State party to the OST, just as they are for UNCLOS. The South China Sea tribunal found that China violated their international legal obligations to act with due regard toward the Philippines’ rights in the South China Sea.
If China acts contrary to their UNLCOS legal obligations of due regard in the South China Sea, no one should be surprised if they make similar choices on the Moon. Just as the legal regime of the maritime environment, the Outer Space legal regime requires States to act with due regard toward others.
While due regard as a legal obligation does not require China to wait for all interested States to agree with their plans for the Moon, China is legally required to ensure their Moon activities are not contrary to the rights of other States. As of this writing, China has not taken any public actions to satisfy these legal obligations.
There is limited State practice in Outer Space that illustrates how States may act within their legal obligations in Outer Space. However, this lack of State practice does not leave the international community blind. Chinese activities in the South China Sea are clear indications of likely Chinese actions on the Moon.
What should the US and other States do about China’s Moon ambitions?
The international community should not react to Chinese activities on the Moon. Instead, States should be proactive and vigorously advocate for China to respect OST legal obligations.
OST Article IX allows any State party to request consultation if that State party has reason to believe that another State party’s activities in Outer Space, on the Moon, or on other celestial bodies would cause potentially harmful interference with peaceful exploration and use of Outer Space, the Moon, or other celestial bodies.
The US should lead the way by reminding China of legal obligations under OST Article IX. Also, the US should exercise their State party rights under Article IX to request that China consult with all State parties about planned Moon settlements.
China is a revisionist power. Right now, our terrestrial environment is a rules based global order. That status could change. The global community should act to ensure the rules based order carries into Outer Space exploration and settlement.
If the US and international community are not vigilant, time and opportunity will be lost.
Notes
[1] “‘We better watch out’: NASA boss sounds alarm on Chinese moon ambitions,” available at https://www.politico.com/news/2023/01/01/we-better-watch-out-nasa-boss-sounds-alarm-on-chinese-moon-ambitions-00075803.
[2] The Republic of China signed the Outer Space Treaty on January 27, 1967, and deposited an instrument of ratification of the Treaty on July 24, 1970. See https://treaties.unoda.org/a/outer_space/china/ACC/washington.
[3] The U.S. National Aeronautics and Space Administration (NASA), the European Space Agency, the Roscosmos State Corporation for Space Activities (or in Russian, Роскосмос), the China National Space Administration, SpaceX, Lockheed Martin, and Boeing are all researching permanent human settlements in areas beyond national jurisdiction.
[4] The South China Sea Arbitration (Philippines v China), Award (2016), (Permanent Court of Arbitration) (Arbitrators: Judge Thomas A Mensah, Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Professor Alfred HA Soons, Judge Rüdiger Wolfrum), online: Permanent Court of Arbitration <https://pcacases.com/web/view/7> [SCSA Award].
[5] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST) available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html. Also see OST Article III that requires all treaty parties shall explore and use outer space in accordance with ‘international law, including the Charter of the United Nations’. In addition, while the treaty is an agreement among nations, the treaty extends to the activities of private companies in outer space. Article VI of the OST provides that treaty parties bear international responsibility for national activities in outer space whether ‘such activities are carried on by governmental agencies or by non-governmental entities’. Article VI also requires that nations continue to supervise non-governmental activities in outer space throughout the duration of that activity. Article IX requires that treaty parties engaged in the exploration and use of outer space ‘be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space…with due regard to the corresponding interests of all other States Parties to the Treaty’.
[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), Jan. 27, 1967, 18 UST 2410; 610 UNTS 205; 6 ILM 386 (1967)
About the Author
Tracy Reynolds, CDR, JAGC, USN is an active-duty military attorney in the U.S. Navy. She currently serves as Fleet Judge Advocate to Commander, SECOND Fleet in Norfolk, Virginia. Throughout her sixteen years of service, she has advised military decision makers both ashore and afloat during peacetime and combat operations.
CDR Reynolds’ focus at SECOND Fleet is the maritime response to Russia’s invasion of Ukraine, NATO interoperability, the Arctic, and countering small unmanned systems in international air space and on/under the high seas. CDR Reynolds is a remote PhD student through the University of Adelaide. Her thesis is that maritime law can and should serve as an analogue to the development of the outer space legal regime.
*Disclaimers:
Tracy Reynolds is a commander in the U.S. Navy. All views expressed in this article are the participant’s own and do not represent the official view of the U.S. government, the Department of Defense, or the Department of the Navy.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. See also here.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
