Always Left Looking Up
Vol. 43 Associate Editor
On October 13, Blue Origin, an aerospace company founded by Jeff Bezos, sent its second crewed mission to space, which included sending actor William Shatner to boldly go where no ninety-year old man had gone before (and perhaps never needed to). This flight and the publicity surrounding it reflect the increasing investment in commercial space enterprises, with the U.S. government investing around seven billion dollars in private space companies alone, and the shift in focus from scientific research to commercial activities, including space tourism. This renewed interest in space activities has not escaped the law, with eight nations signing the Artemis Accords on October 13, 2020 (now the number stands at eleven). Legal analysis of the Artemis Accords has tended to divide the Accords into three roughly formed categories, namely, restatements of the Outer Space Treaty; further enumeration and operationalization of the Outer Space Treaty; and introduction of new concepts. Within these new concepts rests what has been called the most important development in the commercialization of space – the right of private entities to extract space resources. The aim of this blog post is to, first, discuss Sections 9, 10 and 11 of the Artemis Accords to better understand the new concepts being introduced. Second, consider whether the operative acts as explained in these sections cumulatively constitute claims of sovereignty. Finally, by analyzing the effect of the Accords on international law, the blog highlights situations where some countries are, by design, left behind. But before we dive into the Artemis Accords, it is important to contextualize the law surrounding outer space within which these developments have occurred. The bedrock of international space law is the Outer Space Treaty, which enshrines two principles, equality and equity, by asking for the use and exploration of space to be free of any discrimination and for it be carried out for the benefit and in the interest of all countries. By rejecting claims of national appropriation, and treating outer space as the “province of all mankind,” the treaty reflects a post-colonial vision of space as a global commons. The Moon Agreement went a step further, declaring the moon and its resources to be the common heritage of mankind. As van Eijk notes, space law rose as colonialism fell, and as such it reflects the initial views of the third world to a branch of international law, which they saw as an extension of the colonial model of exclusion. I. Privatization and Outer Space Many people see the Artemis Accords as the first major breakthrough in international space law since the Moon Agreement. However, as Stephan Hobe has previously stated, it is accurate to contextualize the Accords as furthering the U.S.’s interpretation of property rights in outer space. Articles VI and VII of the Outer Space Treaty make states responsible and liable for private space activities. The U.S. has long argued that this language allows the private sector to act in space, so long as it is compliant with international law. To this end, the U.S. passed a law in 2015, which recognized rights of the private sector to “possess, own, transport, sell and use” space resources. The Artemis Accords are an extension of this policy of commercialization. Section 9 of the Accords calls for the preservation of outer space heritage, which is directed towards the preservation of the Apollo landing sites. Section 10 asks for the extraction of space resources to be done in a manner compliant with the Outer Space Treaty while stating that the extraction of resources itself does not constitute a claim of national appropriation. Finally, Section 11 calls for the creation of “safety zones” to prevent interference with another nation’s space activities, in furtherance of Article IX of the Outer Space Treaty. Facially, these regulations represent a continuation of U.S. space policy without any direct infringement of the Outer Space Treaty. However, many scholars have already made preliminary objections. Scholars argue that the bilaterally imposed exclusionary nature of safety zones and any imposition of Section 9 would restrict the freedom of exploration to other nations and thereby equality, as guaranteed under article I of the Outer Space Treaty. With regards to mining and commercialization of space resources, the Outer Space Treaty is inchoate as it was developed at a time when such technical advancements and situations were never considered but it is easy to see how a first come first serve policy would lead to a tragedy of the commons. II. Property and Sovereignty One of the most hotly contested debates within legal theory for a while was whether a right to property is created by the state or whether it arises from natural law. The treaty of Westphalia signaled the victory of the positivist approach. Under this model, property rights were understood only within the framework of national law, which was an exercise of a state’s sovereignty. Lauterpacht analogized the concepts of sovereignty and property by highlighting the shared construct of the “exclusiveness of enjoyment and disposition.” It is from this perspective of exclusion that we shall attempt to analyze the provisions of the Accords. The Accords do not specify particular operational models. However, if we attempt to construct a vision of what space activities would look like under the Accords, the picture we get is as follows: the landing sites of the Apollo 11 missions will be closed off with respect to access by other countries, national activities conducted on the moon and other celestial bodies will have limited access, only by nations which declare such zones, and private companies shall be promised exclusive rights to the resources they mine along with the locations where they conduct their operations for providing assurance and security to the investment made by these companies. As per article VI of the Outer Space Treaty, countries are liable and responsible for the activities of these private entities, which paints a picture of continuous supervision. Any resources extracted under these conditions will be regulated under domestic law of the relevant nation. Viewed through the lens of exclusion, these provisions enable an exclusionary claim to space, its resources and particular areas which are regulated by domestic property law of a state. In other words, they are tantamount to a claim of sovereignty. III. Leaving States Behind: Colonialism and Exclusion Alan Wasser has argued that the “right to claim newly settled property has always provided the economic incentive for human expansion.” Various other sources describe resource mining as “extraction,” “exploitation,” or the new “Gold Rush.” Does this language evoke thoughts of some historical acts? NASA has an entire page dedicated to “Space Colonization.” The use of such language evokes strong anti-imperialist sentiment amongst the Global South. And not without reason. The story sounds all too familiar. A private company, authorized by a special charter of authority by a state sets off to explore “unchartered territory.” They occupy and use the lands and resources of the previously unchartered space. Eventually, ownership of this land, guaranteed by a sovereign act, transfers to the sovereign state itself. Add in the violent cleansing of ethnic populations, and this is the story of the colonization of India. This is not to claim that the U.S. is intent on the ethnic genocide of a Martian people (assuming they exist). The purpose of the rhetoric is to highlight the narrative of exclusion that continues. Viewed from the perspective of the Global South, the Artemis Accords reflect a model of property rights leading to national dominance, with two particular concerns discussed below. First, predictably, the Artemis Accords make no reference to any benefit sharing principles, save for a cursory mention of the sharing of scientific data. While the U.S. has explicitly rejected the validity of the Moon Agreement, which specifically calls for the equitable distribution of benefits derived from space resources between all State Parties, the principle of benefit sharing does find mention in other documents. Article I of the Outer Space Treaty calls for the use and exploration to be for the benefit and in the interest of all countries. Further, the General Assembly has also adopted a resolution reaffirming benefit sharing of space resources with a particular focus on the needs of developing countries. In the absence of any such language in the Accords, it is hard to see how the Accords do anything other than promote an inequitable distribution of resources based on the first come first served principle, which, given the gaps in space technology between the First and the Third World, serve to ensure maximum capture of benefits by the Global North to the exclusion of the South. The second concern arises from the nature of the development of the Artemis Accords, done unilaterally by the U.S. and made a pre-requisite by the U.S. for any country wishing to join the Artemis Program. Unlike previous treaties, this has not been discussed in the Committee on Peaceful Uses of Outer Space (COPUOS) and thereby has denied the Global South any chances to voice their opposition or influence the Accords in anyway. Admittedly, these Accords are in the nature of a bilateral agreement between states and hence ought not be discussed in the COPUOS. However, given that major space faring nations have begun to sign on the Accords and develop national frameworks which allow for resource mining, we could potentially be witnessing the creation of a regime which the Global South may be obligated to follow without having any role to play in its development. International law developed as part of the colonial model with a particular focus on sovereignty. Space law is one of the clearest examples of the colonial impact on international law. Our discussion above set out to highlight how international law still interacts with the aims of colonialism through concepts of property and sovereignty and how the “final frontier” has become another avenue for the same models to be repeated. The question we’re forced to ask is, does the Global North have the right to treat the Universe as if it belongs to them—like some colony?
 Emily Shapiro, Blue Origin recap: William Shatner ‘overwhelmed’ by ‘moving’ trip to space, ABCNews (Oct. 13, 2021, 12:42 PM), https://abcnews.go.com/US/live-updates/blue-origin-space-launch/?id=80536694.  Michael East, How Star Trek is Influencing Real Life Space Law, Fansided (June 2021), https://winteriscoming.net/2021/06/22/how-star-trek-influencing-real-life-space-law.  After William Shatner flight, Prince William slams space tourism, Al Jazeera (Oct. 14, 2021), https://www.aljazeera.com/news/2021/10/14/prince-william-tells-space-tourists-fix-earth-instead.  Richard Luscombe, Rocket man: how billionaires are using celebrities as PR for their space projects, The Guardian (Oct. 13, 2021, 1:00 PM), https://www.theguardian.com/science/2021/oct/12/billionaires-space-tourism-celebrities-blue-origin-jeff-bezos.  These figures reflect investment by various US government agencies from 2000 to 2019. It is important to note that the parable about Blue Origins is relevant here because it shows state entities (NASA) are investing heavily in commercial ventures such as (Blue Origins). Loren Grush, Commercial space companies have received $7.2 billion in government investment since 2000, The Verge (June 18, 2019 01:16 PM), https://www.theverge.com/2019/6/18/18683455/nasa-space-angels-contracts-government-investment-spacex-air-force.  Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of The Moon, Mars, Comets, and Asteroids for Peaceful Purposes (13 October 2020).  Jack Wright Nelson, The Artemis Accords and the Future of International Space Law, 24(31) ASIL Insights (Dec. 10, 2020), https://www.asil.org/insights/volume/24/issue/31/artemis-accords-and-future-international-space-law.  Andrew Brooks, The Artemis Accords: The Necessary Incentive of Space Extraction Rights, Colum. J. Transnat’l L. (Nov. 9, 2020), https://www.jtl.columbia.edu/bulletin-blog/the-artemis-accords-the-necessary-incentive-of-space-extraction-rights.  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.  Aldo Armando Cocca, The Advances in International Law Through the Law of Outer Space, 9 J. Space L. 13, 14 (1981).  Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.T.S 3.  Cristian van Eijk, International Lawyers, Look To The Heavens- Before We Lose Them, Volkerrechtsblog (Apr. 7, 2014), https://voelkerrechtsblog.org/international-lawyers-look-to-the-heavens-before-we-lose-them.  Even today, the moon agreement has a paltry 18 nations as party to the agreement. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec 18, 1979, 1363 U.N.T.S 3.  Alexander Stirn, Do NASA’s Lunar Exploration Rules Violate Space Law?, Sci. Am. (Nov. 12, 2020), https://www.scientificamerican.com/article/do-nasas-lunar-exploration-rules-violate-space-law.  U.S. Commercial Space Launch Competitiveness Act, H.R. 2262, 114th Cong. (2015).  See also Exec. Order No. 13914, 85 Fed. Reg. 20381 (Apr 10, 2020) (encapsulating US policy on space resources, explicitly stating that the US rejects the view of space as a global commons); see also Economic Report of the President 225 (Jan. 2021), https://www.govinfo.gov/content/pkg/ERP-2021/pdf/ERP-2021-chapter8.pdf (unequivocally stating the desire of the US to pursue policies which strengthen investor confidence allowing the private space sector to flourish).  NASA sets guidelines for Apollo moon landing rights, Sservi, https://sservi.nasa.gov/articles/nasa-sets-guidelines-apollo-moon-landing-sites (last visited Oct. 30, 2021).  Kiran Vazhapully, Space Law at the Crossroads: Contextualizing the Artemis Accords and the Space Resources Executive Order, OpinioJuris (July 22, 2020), http://opiniojuris.org/2020/07/22/space-law-at-the-crossroads-contextualizing-the-artemis-accords-and-the-space-resources-executive-order.  Frans von der Dunk, The Artemis Accords and the Law: Is the Moon ‘back in business’?, Univ. Auckland (June 2, 2020), https://www.thebigq.org/2020/06/02/the-artemis-accords-and-the-law-is-the-moon-back-in-business.  Jeremy Bentham, The Theory of Legislation 111–13 (E. Hildreth ed., 1864) (“Before laws were made there was no property, take away laws and property ceases”).  Andreas Rahmatian, Indirect Sovereignty through Property Rights, 7(2) Notre Dame J. Int’l & Comp. L. 58, 75 (2017).  E.A. Harriman, The Right of Property in International Law, 6 B.U. L. Rev. 103, 104 (1926) (“It is a mere truism, therefore, to say that the legal right of property is a matter of local law”).  Hersch Lauterpacht, Private Law Sources and Analogies in International Law 95 (1927).  See U.N. GAOR, 21st Sess., 1492d mtg., U.N. Doc. A/C.1/SR.1492 (Dec. 17, 1966) (noting the travaux preparatoires of the Outer Space Treaty specifically highlight how the freedom of use and exploration outlined in Article I would be defeated if exercised to exclude other states.)  But see John Sprankling, The Global Right to Property, 52 Colum. J. Transnat’l L. 464; see also Leslie I. Tennen, Enterprise Rights and the Legal Regime for Exploitation of Outer Space Resources, 47 U. Pac. L. Rev. 281. Amongst other scholars, Sprankling and Tennan argue for the existence of commercial rights without any claims of sovereignty. Referring to Article 116 of the UN Convention on the Law of the Sea, U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397., the argument analogizes the right of private parties to extract resources from space to the right of commercial fishing on the high seas without claims of sovereignty. They describe such rights as enterprise rights which are in the nature of usufruct. The difference, however, lies in the state responsibility outlined in article VI above which is unique to the Outer Space Treaty. This responsibility leads to a unique claim of sovereignty. Therefore, the claims under the Artemis Accords, should not be seen to be in the form of enterprise rights. Additionally, while Russia and China have not signed the Artemis Accords, if they did, their space activities would be carried out by space owned private corporations, which would be permitted under the Accords. Given that the U.S, through state entities, is also investing heavily in private space corporations, it’s hard to see how these operations do/would not amount to claims of sovereignty.  Alan Wasser, How We Could Make Space Settlement Profitable, Space Times (Mar.–Apr. 1997), http://www.space-settlement-institute.org/Articles/research_library/Wasser-1997-SpaceTimes-How-We-Could-Make-Space-Settlement.pdf.  See, e.g., Joseph Pelton, The New Gold Rush: The Riches of Space Beckon (2017).  Space Colonization, NASA, https://www.nasa.gov/centers/hq/library/find/bibliographies/space_colonization (last visited Oct. 30, 2021).  Sharan Bhavnani, The Collapsing Core of International Space Law, Fletch. F. World Aff. (May 25, 2020), http://www.fletcherforum.org/the-rostrum/2020/5/13/xivuszey4u0y9jsbi360vfmz1lixrn.  See generally William Dalrymple, The Anarchy (2019).  Dennis O’Brien, The Artemis Accords: repeating the mistakes of the Age of Exploration, Space Rev. (June 29, 2020), https://www.thespacereview.com/article/3975/1.  Artemis Accords, supra note 6, § 4.  U.S. Commercial Space Launch Competitiveness Act, supra note 16.  G.A. Res. 51/122 (Feb. 4, 1997).  Christopher Newman, Artemis Accords: why many countries are refusing to sing Moon exploration agreement, The Conversation (Oct. 19, 2020, 7:45AM), https://theconversation.com/artemis-accords-why-many-countries-are-refusing-to-sign-moon-exploration-agreement-148134.  Artemis Accords, supra note 6.  See, e.g., Cecilia Jamasmie, Luxembourg to set up Europe Space Mining Centre, Mining[dot]com (Nov. 18, 2020, 9:35AM), https://www.mining.com/luxembourg-to-create-space-resources-centre; see also Dr. Theodore Karasik, First Space Mining Projects Moving Even Nearer, Arab News (Oct. 21, 2021, 10:06PM), https://www.arabnews.com/node/1952741.  Anthony Anghie, The Evolution of International Law: colonial and postcolonial realities, 27(5) Third World Q. 739, 742 (2006).  van Eijk, supra note 13.  Rep. Matthew M. Foot, High Altitude Tests: House of Commons Debates, 677 Hansard 1539, 1540 (May 16, 1963), https://api.parliament.uk/historic-hansard/commons/1963/may/16/high-altitude-tests#S5CV0677P0_19630516_HOC_162 (“Does the right hon. Gentleman’s answer mean that the United States Government embarked on this experiment without any consultation with the British Government at all? Does he think that the United States Government have the right to treat the Universe as if it belonged to them—like some Latin-American State?”).