MarIus

2.6.1 The Moon Agreement

One potential subsequent agreement of interest is the fifth and last of the UN space treaties, the Moon Agreement of 1979 [MA], was an attempt to regulate activities on the Moon. It reiterates the non-appropriation principle and introduces provisions regarding the exploitation of natural resources.^{(2) The Moon Agreement (n. 24), Article 11.} The MA is a recurring topic addressed by legal scholars when discussing the legal status of natural resources in outer space. A central question is: Does it affect the interpretation of provisions in the OST at all? Some believe it may be relevant when interpreting Article II of the OST, because it reiterates the non-appropriation principle almost word by word.^{(3) De Man (2016), 135.} Others subtly acknowledge its close link to the OST.^{(4) Lyall and Larsen (2018), 169.} In this regard, the MA may possibly contribute to a clarification of the provisions of the OST. Some commentators also acknowledge its potential as a future legal framework.^{(5) Tronchetti, (2015), 782.}

The Moon Agreement, Article 11 introduces the first and last treaty-based framework on natural resources in space:

1. “The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 or this article.

2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.

4. States Parties have the right to exploration and use of the moon without discrimination of any kind, on a basis of equality and in accordance with international law and the terms of this Agreement.

5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the moon.

7. The main purposes of the international regime to be established shall include:

   1. The orderly and safe development of the natural resources of the moon;

   2. The rational management of those resources;

   3. The expansion of opportunities in the use of those resources;

   4. An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

8. All the activities with respect to the natural resources of the moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement.”

As we can see, Article 11 provide a set of rules explicitly pertaining to natural resources on the Moon. Paragraph 2 reiterates the non-appropriation principle of the OST virtually in verbatim. It is necessary to underline that the provisions of the MA also extend to other celestial bodies, as stipulated in the MA Article 1.^{(6) Article 1 (1): “The provisions of this Agreement relating to the moon shall also apply to other celestial bodies within the solar system, other than the earth, except in so far as specific legal norms enter into force with respect to any of these celestial bodies.”}

Paragraph 3 establishes explicit rules on property and ownership. It states that none of the moon’s natural resources located “in place” shall become the property of anyone.^{(7) First sentence.} Furthermore it states, inter alia, that no stationary constructions can create a right of ownership over the surface or subsurface of the Moon or ‘any areas thereof’.^{(8) Second sentence.}

Accordingly, no ownership of natural resources “in place” on the Moon is allowed. Additionally, no activities on the Moon can establish ownership rights by their, e.g, stationary nature. By implication, this applies to stationary constructions of varied size over a long period of time. This effectively appears as an elaboration of the non-appropriation principle. The meaning of ‘in place’ is not clear. Some argue that the MA establishes a de facto moratorium – a suspension of activity – on the exploitation of the natural resources of celestial bodies.^{(9) Hobe (2019), 98.} If so, the question is whether resources are capable of being owned once not ‘in place’.

Several arguments have been made on the meaning of ‘in place’. One hinges on the very fact that as the wording ‘in place’ suggests that resources are capable of being owned if they are extracted, i.e ‘out of place’.^{(10) Pershing (n. 185), 159, refers to a statement of the U.S delegate in the negotiations of the Moon Agreement, in which it was argued that “in place” suggests that extracted materials can become property..} This view is not unfounded, but not necessarily because of the wording itself and sentence structure. Any natural resource ‘in place’ on the surface or subsurface of the Moon is, more or less, a part of the Moon. If ownership to a resource ‘in place ‘is to exist, it cannot exist on the basis of use but on some kind of assertion or claim, because the resource cannot be in physical possession while still part of the Moon’s surface. This brings us back to earlier discussions on the meaning of appropriation. Exclusive use is not prohibited, but appropriation of celestial bodies is. For anyone to own a resource ‘in place’ in the surface or subsurface of the Moon, they would effectively have to claim ownership to them, and, by implication, part of the celestial body. This would infringe on the non-appropriation principle.

Another provision of interest is established in paragraph 1, which states that the Moon and its natural resources are the ‘common heritage of mankind’ (CHM). This way of thinking stems from the now acquainted res communis-concept and is considered to be an evolution of that principle.^{(11) Tronchetti (2015), 783.} Different than the right to free use provided in the res communis-principle, the concept sets limits on certain activities if they exploit what can be considered the common heritage of all humankind – effectively a broad mass of legal subjects. The collective management of natural resources is often a central theme when discussing the CHM, although discussions show the concept is not crystal clear.^{(12) As touched upon in section 1.4.3.}

The authority of the MA in the interpretation of the non-appropriation principle, however, is weak due to the lack of support, with only 17 ratifications compared to the 114 of the OST.^{(13) See Status of Treaties (n. 23).} Its obligations are only binding for those party to it. Thus, it is hard to argue that it is an “agreement between the parties regarding the interpretation of the [Outer Space] treaty or the application of its provisions”.^{(14) Cf. VCLT Article 31, nr. 3 (a).}. Even if on the border of being such an agreement, the shift from no mention in the OST of natural resources at all, to possibly part of the ‘common heritage of mankind’, would make it hard to justify such a drastic interpretation of the OST in favor of the rules of the MA. Some even view the postponement of negotiations [Article 5] on a regulatory regime until resource exploitation becomes feasible, as more an absence of a subsequent agreement than a possible one, thus rendering the MA of little help when interpreting the OST.^{(15) Michael Byers and Aaron Boley, “Space Mining” in Who Owns Outer Space. Cambridge University Press, (2023), 145.} Consequently, the legal basis is too weak, and the results too drastic, to consider the MA as significant when interpreting the OST. Since the MA does not apply to major space-faring nations, the OST remains the primary framework relevant for the use of space resources.^{(16) Tronchetti and Liu, 2019 (n. 73).} However, since it lacks specific provisions, this arguably prompts countries to develop national legislation to address these legal gaps.^{(17) Ibid.}

2.6.2 The Artemis Accords

A recent development that should be addressed is the impact of the Artemis Accords. This U.S-founded multilateral agreement is described as the legal foundation for the Artemis Program, which plans to send humans to the Moon and beyond. The Accords establish a set of principles and guidelines that intends to “increase the safety of operations, reduce uncertainty and promote the sustainable and beneficial use of space for all humankind”.^{(18) The Artemis Accords, Section 1 (1). Available online: https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf. Last accessed May 13th 2024.} Signing the Accords is required to join the Program.^{(19) Masson-Zwaan and Sundahl (2023), 396.} Furthermore, the Accords declares that the use of space resources is beneficial for space operations, that any such use should be in accordance with the OST, and that the extraction of space resources does not “inherently” constitute national appropriation under Article II.^{(20) Artemis Accords (n. 313), Section 10, paragraphs 1 and 2.} The placement of “inherently” is peculiar, as it makes the statement less conclusive. It seems to suggest that extraction of space resources on the one hand, and national appropriation on the other, are not ‘inseparable’, or, that extraction does not ‘necessarily’ constitute national appropriation.^{(21)https://www.merriam-webster.com/dictionary/inherent. Last accessed May 15, 2024.} Acknowledging the play of words, this may nonetheless indicate – yet again – a view expressing that the non-appropriation principle can be infringed on by resource activity in certain situations. Others see the wording merely as a result of constructive ambiguity, thereby reducing the weight of the Accords as means of interpretation or contributing to form customary law.^{(22) Byers and Boley (2023), 160.}

One of the more controversial concepts introduced by the Accords, is the establishment of ‘Safety Zones’. Their purpose is to avoid harmful interference when conducting hazardous activities by informing the public of these activities, and by notifying and coordinating with other Signatories.^{(23) The Artemis Accords (n. 313), section 11, paragraphs 6 through 10.} The result is an area which is maintained as a safety zone until the operation ceases.^{(24) Ibid. Section 7.} This is by some considered controversial, pointing out that such activity may infringe on the non-appropriation principle.^{(25) Alexander Gilbert, “Implementing safety zones for lunar activities under the Artemis Accords” in Journal of Space Safety Engineering 10 (2023) 103-111. https://doi.org/10.1016/j.jsse.2022.12.007.} Contemplating the time aspect of resource exploitation, some furthermore argue that a de facto occupation may occur when a safety zone remains in place for a long period of time.^{(26) Byers and Boley (2023), 175.} Others contradict such concerns, arguing that the introduction of safety zones in the Accords does not impose any exclusion but merely emphasizes the importance of communication through notice and coordination.^{(27) Masson-Zwaan and Sundahl, (2023), 397-398.} This can supposedly be perceived by the Accord’s emphasis on respecting the principle of free access to all areas of celestial bodies and all other provisions in the OST.^{(28) Ibid., 398. The Artemis Accords Section 11, paragraph 11.}

This brief discussion on safety zones and their possible infringement on the non-appropriation principle seems to underscore, yet again, a recurring element in this discussion: Whether a space resource activity constitutes appropriation depends on factors such as timeline and scale of operation. Especially for safety zones, the time aspect is recurringly emphasized.

Furthermore, the discussion is highly political in nature. For instance, China and Russia are not parts to the Accords, and they seem highly unlikely to join. Their reaction to the development of safety zones may involve a similar counteract of their own. Followingly, there is, for example, a chance that non-parties to the Accords establish their own equivalent of safety zone principles.

39 States have now signed the Accords.^{(29)https://www.state.gov/artemis-accords/. Last accessed May 15, 2024.} 36 of these are Parties to the OST, and an additional two are signatories.^{(30) See Status of treaties (n. 23).} Additionally, 15 of the world’s top 20 largest economies have signed the Accords.^{(31) “Gross domestic product 2022”, World Development Indicators database, World Bank, 1 July 2023. https://databankfiles.worldbank.org/public/ddpext_download/GDP.pdf. Last accessed May 15, 2024.} All 39 Signatories to the Accords, affirm that “[the] extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty. […].”^{(32) Artemis Accords, Section 10, second paragraph, second sentence. See note 305, supra.} More States can be expected to join the Accords.^{(33) Notably, Norway has not signed the Accords at the time of writing.} Thus, how the subsequent interpretation of non-appropriation principle may develop in the future, is uncertain.

2.6.3 Developments in the UN

The legal subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) established in 2022, known as the Working Group on Legal Aspects of Space Resource Activities (Working Group), have a mandate to provide a set of recommended principles for space resource activities within a five year working plan.^{(34) UNOOOSA – website of the Working Group on Legal Aspects of Space Resource Activities, under Mandate, terms of reference, and workplan and methods of work of the Working Group. Available online: https://www.unoosa.org/oosa/en/ourwork/copuos/lsc/space-resources/index.html. Last accessed May 14, 2024.} This includes studying the legal framework for such activities, ensuring that the provided principles are in accordance with international law, thus implying an effort to clarify the meaning of provisions, in particular the OST.^{(35) Ibid.} Furthermore, the Working Group shall take the submissions of State members of the Committee into account, and as appropriate, from other stakeholders.^{(36) Ibid. Under “B. Terms of reference”, litra (e).} The recommended principles provided by the Working Group may constitute a significant means of determining the meaning of the non-appropriation principle.

The discussions in the COPOUS have changed from a focus on the legality of using or establishing property rights to space resources, to focusing on their governance and sustainable use.^{(37) Masson-Zwaan and Sundahl (2023), 395.} Yet, the view of States on the impact of the non-appropriation principle differs notably. This can be read from the submissions of States members in response to the invitation of the Working Group on with regards to its mandate and purpose. The U.S Delegation declares that the U.S position is that the non-appropriation principle only applies to natural resources of celestial bodies that remain “in place”, making ownership of extracted resources permitted.^{(38) Initial Submission by the Delegation of the United States of America to the United Nations Committee on the Peaceful Uses of Outer Space Legal Subcommittee Working Group on the Legal Aspects of Space Resource Activities, March 20, 2023. A/AC.105/C.2/2023/CRP.37. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/20230320_US_initial_submission_UNCOPUOS_LSC_SRU_WG_1.pdf. Last accessed May 14, 2024.} The Russian Delegation contradicts this view, arguing that resources of celestial bodies are “organically associated with a certain physical volume (space) of the celestial body itself". Moreover, extraction or other methods of transformation “does not give rise to ownership of these resources”.^{(39) Submission on the Mandate and Purpose of the Working Group on Legal Aspects of Space Resource Activities, p. 5. A/AC.105/C.2/2023/CRP.20. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/RUSSIA1.PDF. Last accessed May 14, 2024.} The Chinese delegation is not as clear, stating they believe that exploitation of resources should be done in conformity with the principle of non-appropriation.^{(40) They elaborate: “[and] the Working Group should formulate initial recommended principles to reaffirm the applicability of this fundamental principle, and to operationalize its application to the various contexts of space resource activities. See page 9 in Submission by China to the Working Group on Legal Aspects of Space Resource Activities under the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, in original format. A/AC.105/C.2/2024/CRP.5. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2024/English_Chinas_submission_to_the_working_group_on_space_resources.pdf. Last accessed May 14, 2024.} France^{(41) Submission by France in original format: Proposal for a French Contribution to the work of the Working Group on the Legal Aspects of Space Resource Activities, pp. 5-6. A/AC.105/C.2/2023/CRP.12. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/France_-_En_-_23-0221-221222_contribution_France.pdf. Last accessed May 14, 2024.} and Germany^{(42) Submission by Germany in original format: Working Group on Legal Aspects of Space Resource Activities at COPUOS Legal Subcommittee, p. 3. A/AC.105/C.2/2023/CRP.13. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/Germany_Annex_-_WG_on_SR.pdf. Last accessed May 14, 2024.} do not comment on the non-appropriation principle with regards to resource exploitation, but view the use of space resources for scientific purposes as in accordance with the legal framework and the OST. They are, however, more restrictive when addressing activities of a larger, non-scientific scale.^{(43) See the French submission (n. 348), p. 6, and the German submission (n. 349), p. 3.} The U.K follows the same line of emphasis on scientific purposes, asserting “[that] Space Resource Utilisation is not expressly prohibited under the Outer Space Treaty for the purposes of scientific investigation”.^{(44) Submission by the United Kingdom of Great Britain and Northern Ireland to UN COPUOS Legal Sub Committee on Space Resource Utilisation Regarding: Possible Areas for Member State Input/Contributions To the Working Group on Legal Aspects of Space Resource Activities. A/AC.105/C.2/2023/CRP.21. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/United_Kingdom_-_UNCOPUS_LSC_-_UK_Submission_on_SR.pdf. Last accessed May 15, 2024.} The delegation, however, views commercial arrangements for scientific purposes as compatible with Article I.^{(45) Ibid.} Japan views the use of resources as included in the freedom to use space provided by the OST Article I.^{(46) Japan: Information on the mandate and purpose of the Working Group on Legal Aspects of Space Resource Activities under the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, p. 2. A/AC.105/C.2/2023/CRP.33. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/Japan_Information_to_Space_Resource_WG.pdf. Last accessed May 15, 2024.} When taking their recent national legislation on space resources into account, their view presumably also includes ownership as a result of commercial activity.^{(47) Ibid.} Canada underscores the freedom to use space as “[a] broad right subject to only certain limitations”, and only briefly mentions the non-appropriation principle as one of these.^{(48) Canada’s Submission to the Working Group on Legal Aspects of Space Resources Activities of the Legal Subcommittee of UN COPUOS, p. 2. A/AC.105/C.2/2023/CRP.11. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/Canadas_Submission_to_the_SRU_WG_at_LSC62_Jan2023.pdf. Last accessed May 15, 2024.} The delegation furthermore shares Canada’s plans for resource activities, and also highlight their being part to the Artemis Accords.^{(49) Ibid.} This implicitly means that they also do not view space resource extraction as infringing on the non-appropriation principle.^{(50) Artemis Accords (n. 313), Section 10 (2).}

2.6.4 Unilateral practice

The extraction and transportation of lunar soil from the Moon to back to Earth has happened in the past, and through a sequence of acts.^{(51) “Practice” suggests that several acts must be committed, which it has by e.g the Apollo missions, the Russian lunar missions, and recently the Chinese Chang’e 5.} Whether this practice “establishes the agreement of the parties” is the key question.^{(52) Cf. VCLT Article 31, nr. 3 (b).} Essential to this assessment is that even if a few Parties has conducted said practice, evidence of the endorsement of inactive Parties must exist.^{(53) This is a stricter requirement than e.g the conduct of organs of international organizations, which requires a counteraction in the form of an act or “representations of the parties to the treaty in question, see Dörr (2018), 601-602.} Yet, such endorsement seems to be able exist even by absence of any disagreement.^{(54) Ibid.} There is no record of protests by the States Parties to the OST on the collection and return of lunar soil samples, nor any other later extraction of such materials. This may therefore constitute another argument supporting that natural resources are not covered by the non-appropriation principle, at least not for scientific purposes or small-scale operations.^{(55) The extraction of lunar soil samples amounted to 382 kilograms through six Apollo-missions. See “Lunar Rocks and Soils from Apollo Missions, NASA. https://curator.jsc.nasa.gov/lunar/. Last accessed May 14th 2024.} When it comes to larger, commercial activities, however, the case is more uncertain. Nevertheless, in 2020 NASA selected commercial companies to collect lunar resources for the Artemis program, and transfer ownership of them to the agency.^{(56) “NASA Selects Companies to Collect Lunar Resources for Artemis Demonstrations, NASA, December 03, 2020. https://www.nasa.gov/news-release/nasa-selects-companies-to-collect-lunar-resources-for-artemis-demonstrations/. Last accessed May 15, 2024.} One of these companies, ispace inc., has already received an interim payment from NASA on September 22, 2022.^{(57) “ispace Receives Interim Payment on Lunar Regolith Transfer Contract from NASA, ispace, inc., September 22, 2022. https://ispace-inc.com/news-en/?p=3696. Last accessed May 15, 2024.} When the planned future transfer of ownership is completed – given a successful mission – it will be the first commercial transaction of lunar regolith ever made, and the first transaction of space resources in history to take place off-world.^{(58) Ibid.} It may therefore constitute subsequent practice if, or more likely when, it becomes frequent among State Parties – including their private entities – and absence of disagreement on this practice remains.^{(59) Dörr (2018), 599.}

National legislation may also constitute subsequent practice.^{(60) Ibid.} Four States have enacted such legislation, pertaining to space resource activities.^{(61) The United States (2015), Luxembourg (2017), the United Arab Emirates (2019), and Japan (2021).} As previously mentioned, the U.S have codified the right for their citizens to own extracted resources through the Commercial Space Launch Competitiveness Act.^{(62) 51 USC, Title IV of the Act, which is entitled ‘Space Resource Exploration and Utilization’, contains the key provisions; namely §§ 51301 through 51303. Available online: https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf. Last accessed May 13, 2024.}. In 2020, the U.S President proclaimed in an executive order that “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law.”^{(63) Executive Order 13914 of April 6, 2020. Available online: https://www.govinfo.gov/content/pkg/FR-2020-04-10/pdf/2020-07800.pdf. Last accessed May 15, 2024.} This substantiates the U.S position established by the Act of 2015.

In the Luxembourgian legislation, it says that space resources are capable of “l’appropriation” – translated to “owned” in the unofficial version.^{(64) Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, Art. 1. Available online: https://legilux.public.lu/eli/etat/leg/loi/2017/07/20/a674/jo. Last accessed May 13, 2024.} The UAE implicitly does the same through the regulation of “[the] acquisition, purchase, sale, trade, transportation (…)” of space resources.^{(65) Federal Law No. (12) of 2019, Article 18. Available online: https://www.moj.gov.ae/assets/2020/Federal%20Law%20No%2012%20of%202019%20on%20THE%20REGULATION%20OF%20THE%20SPACE%20SECTOR.pdf.aspx. Last accessed May 13, 2024.} Japan also guarantees the ownership of extracted resources for the receiver of a permit to conduct space resource activities.^{(66) Masson-Zwaan and Sundahl (2023), 394.} The guarantee of ownership by these States is, however, controversial, and has been criticized by States and scholars alike.^{(67) Byers and Boley (2023), 153.} Adding to the fact the ratio of only 4 State legislations to a 114 States Parties, it is therefore not enough to establish the agreement of the State Parties on the interpretation of the OST.^{(68) Ibid.}