24 November 2020
On 13 October 2020, Australia, Canada, Italy, Japan, Luxembourg, the UAE and the UK joined the United States in signing the Artemis Accords, a set of principles intended to govern the civil exploration and use of outer space and lunar resources, following their announcement by NASA in May this year. An overview of these principles can be found in our earlier article The Artemis Accords: A new frontier for space law and arbitration.
Absences and criticisms
The current list of signatories reflects traditional US allies. Notable by their absence are other key space-faring nations, including China and Russia.
Indeed, Russia has criticised the Artemis Accords for being “too US-centric”. China has similarly criticized the Artemis Accords for being an attempt by the US to secure their own long-term interests in space and those of private investors. Nevertheless, China remains open in theory to finding an agreement with the US to further their objectives.
The cornerstone for international space law today is a number of multilateral treaties, including the Outer Space Treaty of 1967 (“OST”), which is signed and ratified by 110 countries, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 (the “Moon Agreement”). There have been doubts from the international community as to whether the Artemis Accords and broader US policy on space are in consonance with these.
For example, the first two articles of the OST respectively state that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind” and that “outer space, including the Moon… is not subject to national appropriation”. Arguably, the framework of the Artemis Accords neither benefits all countries nor treats the Moon as the province of all mankind. There is some concern, including from the UK Space Agency, that aspects such as the ‘safety zones’ delineating the areas within which signatory nations can carry out certain activities will benefit the US, private corporations and other developed space-faring nations. Other less developed nations that do not currently have the resources or know-how to engage in space missions will be left behind.
Building on the provisions of the OST, Article 11 of the Moon Agreement states that “[t]he moon is not subject to national appropriation by any claim of sovereignty”. It then goes further, specifying that no part of the Moon “shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person” and that no “right of ownership” will be created over the Moon by placing personnel or equipment on it. In other words, under the terms of the Moon Agreement neither the Moon nor anything extracted from it belongs to any nation, person or organization.
In contrast to the OST, the Moon Agreement has only been signed and ratified by 18 countries to date. Neither the US nor any of the other signatories to the Artemis Accords, with the exception of Australia (which has acceded), are parties to the Moon Agreement.
US law and policy on space
In 2015, the US passed the Commercial Space Launch Competitiveness Act (the “Space Act”) under the Obama administration, which controversially allows US citizens to “engage in commercial exploration for and commercial recovery of space resources”. Earlier this year, the Trump administration issued an Executive Order (the “Order”) reiterating that US citizens should have the right to engage in the commercial exploration of outer space and explicitly stating that “the United States does not view [outer space] as a global commons”. The Order specifically denounces the Moon Agreement, stating that the US does not view it as international law and will object to attempts by other nations to treat it as such. It also claims that the current uncertainty surrounding the right to recover and use space resources has discouraged commercial entities from engaging in space enterprise.
The message is clear – the US sees private investors as crucial to the next stage in space exploration, and these investors will want property rights over the resources they mine. As it is not a party to the Moon Agreement, the US is not concerned with contradicting it. Nevertheless, the mining provisions in the Space Act, the ‘safety zones’ of the Artemis Accords and the US’ view that outer space is not a global commons does appear to set the stage for a new direction for international space law.
Developments in international law?
With the rise of space tourism and the potential for space mining by private corporations, the Artemis Accords seek to fill a vacuum in international space law. How to best achieve this goal is the question that needs answering. The framework of bilateral agreements the Artemis Accords introduce represents a shift from the traditional framework of multilateral treaties that have traditionally governed human activity in space. However, it is imperative to ensure that the development of international space law involves as many countries as possible. It also remains to be seen how other countries react to the Artemis Accords and the form that they take in the future. Until then, the development of international space law hangs in balance.
The author would like to thank Maria Hunt for her assistance with this article.
For further information, please contact:
Akshay Sewlikar, Competition Counsel, Linklaters
akshay.sewlikar@linklaters.com
