Vol. 42 Associate Editor
As the global population continues to rise and our planet consequently faces increasing resource scarcity, a potential solution can be found in the last frontier – outer space.[i] Metals, minerals, water, and energy sources have been found to exist in substantial and in even unlimited quantities within our solar system.[ii] Commercial and political interest in space mining is rapidly growing as the concept is becoming realistic and achievable. Just last month NASA’s spacecraft probe, OSIRIS-Rex, landed on an ancient asteroid, unfurled its robotic arm, and collected dust and pebble samples.[iii] Although OSIRIS-Rex faced a few hiccups along the way, the spacecraft is on its way back to Earth with the samples, demonstrating how far space technology has developed towards making extraterrestrial mining a reality.
In the same month as OSIRIS-Rex’s landing on the asteroid known as Bennu, the respective space agencies of eight countries signed the Artemis Accords, a bilateral framework governing a U.S.-led initiative for the crewed exploration of the moon.[iv] The parties to the Artemis Accords, the United Kingdom, Italy, Australia, Canada, Japan, Luxembourg, the United Arab Emirates and the U.S., are now participants in the Artemis Program, which aims to return humans to the Moon by 2024 and establish a crewed lunar base by 2030.[v]
On its face, the Artemis Accords appear to be a continuation of existing customary international law in space. The Accords consistently reference the existing Outer Space Treaty, the multilateral framework that forms the basis of established space law.[vi] The Accords even appear deliberately designed to reassure competing countries that the document is not a set of instructions on how to behave in space from a hegemonic power, but rather an invitation to coordinate space activity.[vii]
With respect to extraterrestrial mining, the Artemis Accords include an explicit statement that the mining of space resources should be in accordance with established international law.[viii] Specifically, Section 10(2) of the Accords states that the signatory countries “emphasize that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities.”[ix] Section 10(4) of the Accords also commits to ongoing discussions at the United Nations Committee on the Peaceful Uses of Outer Space as to how the legal framework on the extraction and use of space resources should develop.[x] The Accords’ last reference to mining is found in Section 11(11), which focuses on safety in space operations, transparency and interoperability of space systems to work in conjunction and collaboration with each other.[xi]
Regardless of its facially benign appearance, the Accords aim to fundamentally define international space law as it relates to extraterrestrial mining. While the explicit language of the Accords indicates a willingness to continue compliance with established customs, Section 10(2) declares that “the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.”[xii] This language constitutes a new, controversial interpretation of Article II, which states that “outer 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.”[xiii] Since the signing of the OST in 1967, there has been a general consensus that nations are prohibited from staking claims to planetary bodies.[xiv] However, there is no universally accepted interpretation of “national appropriation” in the context of space objects and celestial bodies, such as the moon.[xv] For example, does national appropriation apply to individuals and companies occupying parts of the moon or only to a nation claiming territory in space? Further, does appropriation by a company or an individual moving to the moon constitute national appropriation?
The U.S. aims to resolve the interpretative ambiguity of “national appropriation” by attempting to codify American policy on extraterrestrial mining into international customary law. The Artemis Accords arrived after the U.S. Congress passed of the Space Act 2015, which established the right to use and trade space resources into American domestic law.[xvi] Through the Artemis Accords, the U.S. advances the policy articulated by Congress that countries and companies can own the materials they extract from space objects and bodies without claiming ownership over the entirety of the extraterrestrial object or body. According to NASA Administrator Jim Bridenstine, the U.S. “believe[s] that, just like in the ocean, you can extract resources from the ocean. But that doesn’t mean you own the ocean. You should be able to extract resources from the Moon. Own the resources but not own the Moon.”[xvii]
While conceding that national appropriation of space, including celestial bodies, is not permitted, the U.S.-led Artemis Accords intends to exploit the absence of a clear prohibition of harvesting space resources in the OST and international customary law frameworks. The Artemis Accords, if adhered to by its signatories and if accepted by a broader contingent of nations, could enable the U.S. interpretation of national appropriation in space, as articulated by Administrator Bridenstine, to prevail and make the U.S., the licensing nation for the majority of the world’s space enterprises, the apparent custodian of the Moon, asteroids, and other celestial bodies.[xviii] As acquiescence is often tantamount to consent in customary international law, the Artemis Accords’ interpretation of OST’s Article II, if not disputed by other nations, would likely strengthen the U.S. interpretation.
Ultimately, the utilization of bilateral agreements that dictate norms of behavior as a condition of involvement in a space program is a significant undertaking in space governance. For now, the Artemis Accords is just a collection of broadly phrased guidelines, without any defined enforcement mechanisms. All seven partnering countries that have agreed to the Accords with the U.S. are expected participants in the Artemis Program and have the potential to adhere to the Accords’ stated principles. In the leadup to the signing, Japan signaled interest in lunar exploration[xix] and Luxembourg adopted domestic legislation that permits space mining.[xx] The UAE and Australia are both actively trying to establish collaborative links with the broader space industry; the Accords represent an attractive opportunity for these countries to bolster their space capacity.[xxi] Further, Italy, the UK, and Canada all have public ambitions to develop their space manufacturing industries and view the Artemis Program as an opening to grow their respective space industries.[xxii]
Nevertheless, significant absences form the signing of the Accords threaten the framework’s legitimacy to define international law on extraterrestrial mining. Russia and China, two of the world’s leading space powers behind the U.S. have not signed the Artemis Accords. Russia has already labeled the Artemis Program as being too “US-centric.”[xxiii] China’s absence is partially explained by the U.S.’ statutory prohibition on NASA’s ability to coordinate any joint scientific activity with the country.[xxiv] Germany, France and India, countries with well-developed space programs, are also notably absent for the Accords. Time will tell how these absentees will react to the Artemis Accords’ interpretation of national appropriation as it relates to extraterrestrial mining. With disagreement likely, the Artemis Accords’ interpretation is unlikely to become the universal standard in the near future.
[i] See Jayshree Pandya, The Race To Mine Space, Forbes (May 13, 2019), https://www.forbes.com/sites/cognitiveworld/2019/05/13/the-race-to-mine-space/?sh=3031ef061a70.
[ii] Id.; Ice Confirmed at the Moon’s Poles, NASA (Aug. 20, 2018), https://www.nasa.gov/feature/ames/ice-confirmed-at-the-moon-s-poles; Bill Chappell, Water On The Moon: NASA Confirms Water Molecules On Our Neighbor’s Sunny Surface, NASA (Oct. 26 2020), https://www.npr.org/2020/10/26/927869069/water-on-the-moon-nasa-confirms-water-molecules-on-our-neighbors-sunny-surface.
[iii] NASA’s OSIRIS-REx Spacecraft Successfully Touches Asteroid, NASA (Oct. 20, 2020), https://www.nasa.gov/press-release/nasa-s-osiris-rex-spacecraft-successfully-touches-asteroid
[iv] Jeff Foust, The Artemis Accords Take Shape, The Space Review (Oct 26, 2020), https://www.thespacereview.com/article/4054/1
[vi] The Artemis Accords, Oct. 13, 2020, https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf.
[vii] See Christopher Newman, Artemis Accords: Why Many Countries Are Refusing to Sign Moon Exploration Agreement, The Conversation (Oct. 19, 2020), https://theconversation.com/artemis-accords-why-many-countries-are-refusing-to-sign-moon-exploration-agreement-148134
[viii] The Artemis Accords, Oct. 13, 2020, https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf.
[ix] Id. at Sec. 10(2).
[x] Id. at Sec. 10(4).
[xi] Id. at Sec. 11(11).
[xii] Id. at Sec. 10(2).
[xiii] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. 2, adopted Dec. 5, 1979, 18 U.S.T. 2410, 610 U.N.T.S. 205.
[xiv] See Maya Cohen, Can We Escape The Travails Of 2020 By Moving To The Moon?, Above the Law (Nov. 6, 2020), https://abovethelaw.com/2020/11/can-we-escape-the-travails-of-2020-by-moving-to-the-moon.
[xvi] Mike Wall, New Space Mining Legislation Is ‘History in the Making’, Space (Nov. 25, 2020), https://www.space.com/31177-space-mining-commercial-spaceflight-congress.html.
[xvii] Loren Grush, US and Seven Other Countries Sign NASA’s Artemis Accords to Set Rules For Exploring the Moon, The Verge (Oct. 13, 2020), https://www.theverge.com/2020/10/13/21507204/nasa-artemis-accords-8-countries-moon-outer-space-treaty.
[xviii] Aaron Boley & Michael Byers, U.S. Policy Puts the Safe Development of Space at Risk, Science (Oct. 9 2020), https://science.sciencemag.org/content/370/6513/174.
[xix] Neel V. Patel, Why Japan is Emerging as NASA’s Most Important Space Partner, MIT Technology Review (Jul 22, 2020), https://www.technologyreview.com/2020/07/22/1005546/why-japan-jaxa-nasas-most-important-space-partner-artemis-moon-gateway.
[xx] Michael Hardy, Luxembourg’s Bold Plan to Mine Asteroids for Rare Minerals, WIRED (Aug. 29, 2020), https://www.wired.com/story/luxembourg-asteroid-mining.
[xxi] National Space Programme, The United Arab Emirates’
Government Portal (Jul 19, 2020), https://u.ae/en/about-the-uae/strategies-initiatives-and-awards/federal-governments-strategies-and-plans/national-space-programme#:%7E:text=The%20UAE%20launched%20the%20National,cadres%20specialised%20in%20airspace%20sciences.&text=Launching%20the%20National%20Space%20Programme,first%20settlement%20there%20by%202117.
[xxii] The Wider Benefits of Space Investments for the UK Economy, UK Space Agency (Mar. 22, 2019), https://www.gov.uk/government/news/the-wider-benefits-of-space-investments-for-the-uk-economy.
[xxiii] Jeff Foust, Russia Skeptical About Participating in Lunar Gateway, SPACENEWS (Oct. 12, 2020) https://spacenews.com/russia-skeptical-about-participating-in-lunar-gateway/#:%7E:text=WASHINGTON%20—%20The%20head%20of%20Russia’s,existing%20International%20Space%20Station%20partnership.
[xxiv] William Pentland, Congress Bans Scientific Collaboration with China, Cites High Espionage Risks, Forbes (May 7, 2011), https://www.forbes.com/sites/williampentland/2011/05/07/congress-bans-scientific-collaboration-with-china-cites-high-espionage-risks/?sh=737de9694562.
The views expressed in this post represent the views of the post’s author only.