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3.2.1 Obligation to assure compliance with international law

To reiterate the exact wording of the OST Article VI:

“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities , and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty . The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty . When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.” ^{(5) The OST (n. 21).}

The first part of the first sentence emphasizes the general responsibility of States for national activities, the second part elaborates that ‘national activities’ applies to both governmental agencies and non-governmental entities. ‘National activities’ may by itself suggest that only governmental agencies, citizens, or national companies of the respective State is encompassed by the term. This interpretation was for instance made by the UK in the 80s.^{(6) Bin Cheng, “International Responsibility and Liability for Launch Activities” in Air and Space Law, vol 20 (1995), p. 302. https://doi.org/10.54648/aila1995041.} However, most argue that the term is to be understood in conjunction with which State effectively holds jurisdiction over the activity in question.^{(7) Ibid. 303.} The third part allocates the responsibility upon States Parties to ‘assure’ that national activities are conducted in compliance with the provisions of the OST, and thus, in accordance with international law.^{(8) As the OST Article III obligates States to carry out space activities in accordance with international law.} The central question is: What does the duty to ‘assure’ that national activities are in compliance with the OST entail?

The word ‘assure’ implies that States must make certain national activities comply with international law.^{(9)https://www.merriam-webster.com/dictionary/assure. Last accessed May 21, 2024.} This suggests that States must implement measures to regulate these activities, implying a duty of conduct and the obligation of due diligence.^{(10) Timo Koivurova and Krittika Singh, «Due Diligence” in Max Planck Encyclopedias of International Law (last updated 2022), provided online by Oxford Public International Law: https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1034?prd=MPIL. Last accessed May 22, 2024.} Recalling the discussion in Chapter 2, this means States must carefully assess their space resource activities, considering the scale and timeline of operations, the interests of other States, and the purpose of resource exploitation in order to comply with the non-appropriation principle. Subsequently, they must also consider other provisions, such as conducting activities with due regard to other States, which can be read from both the OST Article I (2), and Article IX.^{(11) The OST (n. 21), supra.}

Although the OST does not specify how States should ensure compliance, it suggests that adequate measures must be taken, likely involving regulation through governmental instruments or national legislation. A comparable obligation is found in maritime law. In the UNCLOS it is, inter alia, stipulated that “States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part.”^{(12) UNCLOS (n. 154 Article 139, paragraph 1.} Arguably, this “[may] be characterized as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”.^{(13) Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 41. Available online: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_010211_en.pdf. Last accessed May 22, 2024.} In this regard, the standard of due diligence may – taking into account the rulings of the ICJ – entail not only regulation, but also a vigilant enforcement of said regulation, and exercise of administrative control and supervision over operators.^{(14) Ibid. p. 42, paragraph 115. The Advisory Opinion show to the Pulp Mills on the River Urugay (Argentica v. Urugay)-judgment of April 20, 2010.}

The obligation of due diligence to assure compliance in the first sentence of the OST is clearly connected to obligation of authorization and supervision in the second sentence, which is examined in the upcoming section. It is also connected to State liability because breach of these obligations may, under general international law, constitute a wrongful act if damage is caused by the breach. Additionally, space treaty rules may entail liability based on fault.^{(15) This is discussed in section 3.3, infra.}

3.2.2 What does authorization and supervision by the appropriate State Party entail?

The second sentence of Article VI stipulates that the activities of non-governmental entities shall require authorization and continuing supervision by the appropriate State Party to the Treaty. It is specific and instructional, as it demands that States Parties authorize and continually supervise the activities of entities such as private companies. As such, it can be considered a primary rule – similar to the preceding obligation to assure compliance – setting forth specific obligations for State conduct. Consequently, if a State fails to adequately authorize and supervise a non-governmental entity, secondary rules of State responsibility may be invoked.

The obligation to authorize and supervise non-governmental entities is to be carried out by the ‘appropriate’ State Party. Which State is the ‘appropriate’ one, however, is not defined or elaborated on in the Treaty. Its ordinary meaning suggests that the appropriate State is the one suitable or fitting for the particular situation.^{(16) Camridge Dictionary, see definitions online: https://dictionary.cambridge.org/dictionary/learner-english/appropriate, last accessed 03.05.2024.} Nevertheless, the concept of the 'appropriate State' differentiates itself from the responsibility for 'national activities' mentioned in the first sentence. States are responsible for national activities, including private activities, but this provision does not dictate what the 'appropriate' State Party per the second sentence means. Some seem to quickly conclude that the authorization by the appropriate State is by in large a specific elaboration of the obligations arising from the overall responsibility of States in the first sentence.^{(17) See the different views of Marboe, Gerhard and Cheng in section 3.3.2 on consequences of breach, infra.}

There is a possibility of several appropriate States where both must authorize and supervise non-governmental entities, but one is not responsible because the entities are under another State’s jurisdiction.^{(18) O’Donnell (2023), 231-232.} This concept of multiple 'appropriate' States might initially seem problematic. However, States can arrange for one appropriate State to carry out the obligation, similar to the process of registration.^{(19) Cheng (1995), 304.} Typically, the most logical scenario is that the appropriate State is the one with jurisdiction over the entities' activities, ensuring minimal risk of negative repercussions for the State. Thus, the 'appropriate' State is often described as the State responsible for the activity based on jurisdiction.^{(20) Michael Gerhard, "Article VI", in Cologne Commentary of Space Law vol. 1, ed. Hobe, Stephan, Schmidt-Tedd, Bernhard and Kai-Uwe Schrogl (Köln: Carl Heymanns Verlag, 2009), 117.}

As such, the ‘appropriate’ State will likely be the State that holds jurisdiction over the non-governmental entities applying for e.g a license to mine in outer space. But what exactly does authorization and supervision entail, and how are these to be applied in accordance with international law?

The OST does not specify rigid requirements for how authorization should be implemented by the responsible State, though it is often interpreted as a licensing requirement.^{(21) Hobe (2019), 128.} It is assumed that authorization or license conditions can be implemented in several ways. National legislation is likely the most impactful, as it often addresses a broad range of elements, such as registration, liability for damages, and supervision.^{(22) Gerhard (2009), 119.} A considerable amount of existing national space legislation implements the requirements of Article VI concerning authorization and supervision, while also including provisions on registration and indemnification.^{(23) Irmgard Marboe, «National space law”. In Handbook of Space Law, ed. Frans von der Dunk, Fabio Tronchetti (Northampton: Edward Elgar, 2015), 183.}

Whilst national legislation pertaining to space activities is growing, there are alternatives to the formal legislative approach. Examples include formal agreements between States and their private entities or State investments in private endeavors, both scenarios formally involving the State in the activity and ensuring compliance with the OST.^{(24) Ibid.} Nevertheless, many consider national legislation the safest and most effective way to ensure compliance.^{(25) Lyall and Larsen (2018), 416.} Therefore, a brief examination of existing practice on space resource legislation in some States may provide insight into current developments.

3.2.3 How are the obligations of Article VI implemented in national legislation on space resources?

In 2015, the U.S famously enacted the first ever national legislation on space resources.^{(26) Space Resource Exploration and Utilization Act (the “Act”) in Commercial Space Launch Competiveness Act, 51 USC, Title IV, Chapter 513. Available online: https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf, last accessed May 7, 2024.} Title IV of the Act sets forth general provisions reflecting obligations of the OST Article VI when it in § 51 302 states that “The President, acting through appropriate Federal agencies, shall– (3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government”. However, the Act does not say how authorization is to be granted or by which government entity. The U.S Congress has not approved delegation of authority to authorize space resource activity to any Federal agency yet. The likely authority to issue such licenses – at least in the absence of a specified one – is assumed to be the Federal Aviation Administration Office of Commercial Space Transportation (“AST”).^{(27) Masson-Zwaan and Sundahl, (2023), 391.} The AST already licenses a range of space activities such as launches and re-entry, and space traffic management. Yet, as the Federal Aviation Administration (“FAA”) agency is ultimately a part of the Department of Transportation, some view its “stand-in role” as not fit to regulate mining operations.^{(28) Ibid., 392.} Time will tell what agency, and which terms the U.S select for space resource activities.

Luxembourg has through its space resource act set forth provisions pertaining to the authorization and supervision of the operator conducting space activity.^{(29) Law of July 20th 2017 on the Exploration and Use of Space Resources, English unofficial version. Available online: https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html. Accessed April 13, 2024.} There are several conditions that must be fulfilled to be granted authorization.

According to central requirements, the operator to be authorized must:

1. Have a robust scheme of financial, technical and statutory procedures when planning and executing space resource missions,^{(30) Ibid. Article 7 (2), first sentence.}

2. Have a robust internal governance scheme, including a clear organizational structure with well-defined lines of responsibility, proper risk management, and adequate control mechanisms on administrative, financial, and technical aspects,^{(31) Ibid. second sentence}

3. Have a management with sufficiently good repute and sufficient skills, knowledge, and experience,^{(32) Luxembourg Act (n. 400), Article 9 (1).}

The UAE Space Agency provides similar provisions in a recent regulation on space resources.^{(33) United Arab Emirates The Ministry of Cabinet Affairs Resolution No (19) of 2023 Regarding the Space Resources. Available online under “Space resources Exploration and Use Activities”: https://space.gov.ae/en/policy-and-regulations. Last accessed May 21, 2024.} The conditions for authorization are not as elaborated upon as the Luxembourg legislation, but impose several obligations in Article 6 that also reflect principles and obligations in the OST:

The UAE Space Agency may request additional information or assessments, including financial and technical information.^{(34) Ibid. Article (4), nr. 3.} Furthermore, the Council of Ministers and the Agency can issue applicable regulations that may include liability coverage.^{(35) Ibid. nr. 4.}

The responsible State shall furthermore continually supervise the activities of non-governmental entities.^{(36) The OST, Article VI, second sentence.} Like with authorization, the OST does not elaborate on how such supervision is to be conducted. However, the Treaty text stipulates that the supervision is to be ‘continuing’. This implies that State supervision of activities must be ongoing even after authorization has been granted. ‘Supervision’ thus suggests, similar to the previously discussed obligation to assure compliance with the provisions of the OST, that the 'appropriate' State[s] must oversee that non-governmental entities comply with not only the requirements set by the authorization-State, but that they also comply with provisions of the OST, such as the non-appropriation principle.^{(37) Gerhard (2009), 119.} This involves facilitating for the receival of information on activities and enforcing sanctions upon operators who do not comply with the governing rules.^{(38) Ibid.}

Both Luxembourg and the UAE provide regulations on this:

Article 15 of the Luxembourg space resource act allocates the authority to specific administrative positions “The ministers are in charge of the continuous supervision of the missions for which an authorization has been granted.”^{(39) Luxembourg Act (n. 400)..} Furthermore, an authorization may include details on how the following supervision is to be conducted, as per Article 12: “The authorisation shall describe the manner in which the operator to be authorised fulfils the conditions of articles 6 to 11, paragraph 1. It may in addition include provisions on […] c) the modalities for the supervision of the mission”. By Article 14 (1), an authorization may be withdrawn: “The authorisation shall be withdrawn if the conditions for the granting thereof are no longer met.” This reflects a continuing supervision by the State, as activities may be stopped even after authorization has been granted.

The UAE regulation, Article 4, nr. 2 states that: “Upon the receipt of an Authorization and commenced its Space Resources Activities, the Operator shall keep the Agency up-to-date on a regular basis about the progress of the Space Resources Activities and comply with all instructions issued by the Agency in the event of emergencies or the likelihood of material risks arising out of the Space Resources Activities.” Article 8 furthermore provides a list of reporting obligations, ranging from immediate (significant mission changes, damage, harmful conducts etc.) to routine-based and annual notifications and reports.^{(40) Article 8: Reporting Obligations.}

In summary, the obligation of Article VI to authorize and supervise non-governmental entities, is not clearly defined. However, based on the recent discussion, some key points can be highlighted. Firstly, the provision appears as a primary rule, as it establishes a specific obligation upon States Parties to ensure that the activity of non-governmental entities conform with international law. Breach of the specific obligations may impose secondary rules of responsibility.

Secondly, the legal framework does not dictate how States Parties should act to comply with these obligations. Still, it seems that enacting national legislation is the most effective way to ensure conformity with international law, as it provides a clear and predictable premise for the activities of governmental and private entities alike. Examples from existing national legislation highlight important elements when considering an authorization for space resource activities: non-governmental entities should have robust governance, qualified management, and comprehensive planning schemes. Additionally, considering environmental aspects and the rights of other States is crucial.