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The United States’ goal of completing a crewed moon mission before China has been coined as the new space race, reminiscent of the days of Apollo. Similar to Apollo and the space race with the Soviet Union, the principle of non-sovereignty is at issue as is the rule-based international order. The issue of non-sovereignty in particular is of concern given China’s claims of sovereignty in the nine-dash line region of the South China Sea in contravention of UNCLOS and other norms of customary international law. This behavior will likely be mimicked with the moon, especially if China lands humans on the lunar surface before a U.S. return. This scenario is becoming increasingly likely.
Anticipating this development the U.S. can begin to shape the political narrative to mitigate any cultural, legal or political narratives China weaves to justify asserting sovereignty leading up to and after placing humans on the moon through three key steps.
- Highlight the 57th anniversary of Apollo 11 with a Congressional resolution
Both the House of Representatives and the Senate in the 119th Congress should pass reciprocal resolutions that recognize the achievement of the first humans on the moon and the state practice that affirmed the non-sovereignty principle both in the Outer Space Treaty and customary international law. The resolutions would emphasize Public Law 91-119, which in part disclaims the creation of any sovereign claims by the implantation of the U.S. flag on the lunar surface. The resolutions would further call on China to make a similar proclamation about the display and implantation of their national flag on the lunar surface either via uncrewed probes or taikonauts.
- Sponsor a UN resolution to reaffirm the non-sovereignty principle.
Concurrent with a Congressional resolution, the U.S. can sponsor a resolution in the United Nations extolling the achievement of Apollo 11 and the state practice that solidified the non-sovereignty principle of the OST both through the landing and Congress’ enactment of Public Law 91-119 and calling on all signatories of the Outer Space Treaty to reaffirm their commitment to the non-sovereignty principle. The political effect would be two-fold: First, it would compel China to either publicly support and affirm its commitment to the non-sovereignty principle or its denial of the same by actively voting against the resolution or abstaining from the vote. Second, a vote on, against or abstention on the resolution by states and particularly state parties to the OST will show the U.S. who supports the non-sovereignty principle and those who don’t.
- Directly engage China in closed-door meetings.
In coordination with a Congressional resolution and a resolution in the UN, the U.S. can engage with Beijing directly through diplomatic channels and encourage and gain assurances that it will respect the non-sovereignty principle and that its present and future activities on the moon will be consistent with the legal obligations it has under treaties and customary international law. More to the point, the U.S. can assert that any Chinese activities that implicitly or explicitly assert sovereignty on the moon will not be recognized and denounced by the U.S.
Ultimately, soft power maneuvering alone will not prevent China from making sovereign claims on the moon and its resources. China’s lawfare playbook developed through its activities in the South China Sea are a dress rehearsal for the moon and outer space in general that must not be allowed to be implemented. To that end, a return of humans by the U.S. and its Artemis partners is the best approach to extend state practice and fortify the non-sovereignty principle for outer space and the moon. Nevertheless, preemptive soft power maneuvering can provide a layer of protection and legitimacy of the principle in the sphere of great power competition.
Michael J. Listner is an attorney and the founder and principal of Space Law & Policy Solutions. He is a subject matter expert and practitioner in outer space law, policy and security and an authority on hybrid warfare and lawfare strategy. The views expressed here are opinions of the author in his personal capacity and are not legal advice.
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