For All Mankind? The United States’ Race to Redefine Space Law

by James Hardman, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Sixty years ago, on April 25, 1963, the United States became a signatory to the Outer Space Treaty, enshrining the tenet that outer space was to be “the province of all mankind.”¹ However, in the twenty-first century the U.S. government sought to forge a new interpretation of this provision relating to the private exploitation and ownership of outer space resources.² Legitimizing this approach on the international stage began with the October 13, 2020 launch of the Artemis Accords (“Accords”)³: a collection of nonbinding bilateral agreements⁴ with seven allied nations, expanding since to twenty-three signatories.⁵ The opening section of the Accords echoes the declaration at the heart of the most important treaty establishing the governing principles of international space law, the Outer Space Treaty, which acknowledged the signatories’ mutual understanding of “the benefit for all humankind to be gained from cooperating in the peaceful use of outer space.”⁶ However, rival space powers, such as Russia and China, have disputed the implicit assertion that the Accords’ interpretation of a permissible “use” of the natural resources and territories of outer space truly aligns with the existing international consensus on the non-appropriation of celestial objects.⁷

II. Background

A. Established International Space Law

There are five international treaties governing space law: (1) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”),⁸ (2) Agreement on the Rescue of Astronauts, Return of Astronauts and the Return of Objects Launched into Outer Space of 1968 (the “Rescue Agreement”);⁹ (3) Space Liability convention of 1972;¹⁰ (4) Convention on Registration of Objects Launched into Outer Space (1976) (the “Registration Convention”);¹¹ and (5) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) (the “Moon Treaty”, also known as the “Moon Agreement”), which proclaims that the Moon and its resources are the “common heritage of mankind.”¹² The United States rejects the Moon Treaty.¹³ In fact, only eighteen countries ratified or acceded to the agreement; China was the only major spacefaring superpower to join to this agreement.¹⁴ Saudi Arabia, another party state, withdrew from the Moon Treaty in January 2023¹⁵ not long after signing the Accords.¹⁶

The Outer Space Treaty, an international agreement binding the parties to use outer space only for peaceful purposes, originated out of Cold War weapons treaties, drawing particularly¹⁷ from the Antarctic Treaty¹⁸ and the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.¹⁹ As of February 2023, 112 states—including the United States—are parties to the treaty.²⁰ The Outer Space Treaty is considered the “cornerstone”²¹ of international governance instruments overseeing outer space activities since it provides the basic framework on international space law, including, inter alia, the following pertinent principles:

[T]he 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[;] Outer space . . . shall be free for exploration and use by all States . . . and there shall be free access to all areas of celestial bodies[;] Outer space . . . is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means[;] [and t]he 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.²²

Notably, the Outer Space Treaty is largely silent, or ambiguous, on the exploitation of space-based resources through emerging fields such as lunar and asteroid mining; it fails to clarify whether any parties, including private individuals or corporations, may extract and own the resources from celestial bodies.²³

B. Modern U.S. Space Law Codifying Private Ownership of Space-Based Resources

In recent years, the United States passed space-focused legislation that does not align with the non-appropriation principles underlying the Outer Space Treaty. For example, since 2011 Congress has incorporated the so-called “Wolf Amendment” into appropriations bills, restricting NASA from working with China in a move contrary to the Outer Space Treaty’s emphasis on international cooperation in the exploration and use of outer space.²⁴ Further, in November 2015, the United States Congress passed the U.S. Commercial Space Launch Competitiveness Act (sometimes referred to at the Spurring Private Aerospace Competitiveness and Entrepreneurship, or “SPACE”, Act of 2015),²⁵ codifying the right to use and trade space resources,²⁶ although it included a disclaimer against asserting extraterritorial sovereignty in outer space.²⁷ Both the Trump and Biden administrations promoted this approach: in April 2020, President Trump issued an executive order re-confirming the U.S. view that space is not a “global commons” and that U.S. policy encourages “international support for the public and private recovery and use of resources in outer space, consistent with applicable law.”²⁸ Similarly, the Trump administration published a new U.S. national space policy in December 2020 designed to make the United States a “global partner of choice in international space commerce,”²⁹ an approach that President Biden’s administration upheld in its 2021 United States Space Priorities Framework.³⁰

C. A New International Paradigm: The Artemis Accords

The U.S. government launched the Accords with seven other allied nations on October 13, 2020.³¹ Joining the Accords grants signatories the opportunity to collaborate with partners on NASA’s Artemis Program—the successor to Apollo—which seeks to put the first woman and first person of color on the Moon and establish a foundation for human missions to Mars and other strange new worlds beyond.³² The first major milestone in the Artemis Program occurred recently with the Artemis I module’s successful circumlunar navigation and terrestrial return voyage in late 2022.³³ Signatories to the Accords affirm their commitment to certain key principles grounded in existing international space law, including peaceful purpose, transparency, interoperability, emergency assistance, registration of space objects and the release of scientific data.³⁴ Indeed, the Accords specifically address access to, and use of, space-based resources through the Outer Space Treaty, affirming that “the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.”³⁵ The Accords also provide for the “deconfliction” of activities in space through the creation of neutral “safety zones” to “avoid harmful interference with operations”³⁶ including the “safe and efficient extraction and utilization of space resources in support of sustainable space exploration and other operations.”³⁷ Signatories “commit to respect”³⁸ the safety zones established by other signatories, limited by adherence to “the principle of free access to all areas of celestial bodies and all other provisions of the Outer Space Treaty.”³⁹ Such safety zones could soon be relevant: in March 2019, the United States announced an interest in missions to the South Pole of the Moon,⁴⁰ a strategically important location where China also recently unveiled its own designs for establishing a lunar research station.⁴¹

III. Discussion

The Artemis Accords are not a breach of U.S. international legal obligations under the Outer Space Treaty, despite the reservations of critics. Rather, the Accords are an “innovative but not revolutionary”⁴² manifestation of the U.S. approach to space policy and international space law that accounts for the practical consequences of advancing technologies in a changing solar system.

First, the Accords explicitly affirm that the extraction of space resources “does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with the Treaty.”⁴³ Further, although the Outer Space Treaty rules preclude any form of “appropriation” of outer space by a sovereign, the treaty itself contains no explicit statement on whether extracting resources from celestial bodies even constitutes such an action.⁴⁴ Thus, there is no prima facie breach of the anti-appropriation rules in Article II of the Outer Space Treaty rules per the very text of the Accords.⁴⁵ Although this has not yet been tested before any tribunal such as the International Court of Justice, the Russian Federation raised the issue of the ambiguity of the terms of Article II in its submission to the 62nd Session of the United Nations Committee on the Peaceful Uses of Outer Space Legal Subcommittee, not only implying that the Accords’ grant of ownership rights over extraterrestrial resources to private individuals rights is void because “the national law of any State cannot extend to territories outside its jurisdiction,”⁴⁶ but arguing that any rules for the interpretation of Article II of the Outer Space Treaty “should be developed exclusively within the specialized UN platforms on the basis of current international space law.”⁴⁷

Second, establishing “safety zones” on celestial bodies for the purposes of “deconfliction”— avoiding harmful interference with other parties’ use of outer space—might be contradictory to the Outer Space Treaty.⁴⁸ For instance, some scholars have argued that establishing zones for “certain periods of time with the intention to exercise jurisdiction or control over them and exclude others from using or accessing them would be contradictory to Articles I and II of the Outer Space Treaty.”⁴⁹ Nevertheless, other provisions in the Accords reiterate the customary principle of equal access to celestial objects enshrined in Article I of the Outer Space Treaty.⁵⁰ For example, paragraphs 7, 8 and 11 of Section 11 assert that non-neutral safety zones should only be “established” for temporary possession on certain areas with notice provided to “any relevant actor”⁵¹ as well as the Secretary-General of the United Nations,⁵² that signatories maintaining a safety zone should provide other signatories with the “basis” for the area,⁵³ and, most importantly that all signatories should “respect the principle of free access to all areas of celestial bodies.”⁵⁴ Together, these limitations on the establishing of safety zones on celestial bodies actually reinforce, rather than diminish, the customary principle of equal access to celestial bodies enshrined in Article I of the Outer Space Treaty.

Finally, through the Accords, the United States actually advances its space policies by working within existing governance regimes rather than revising existing space law––in contrast to the Trump administration’s decisions in other areas to reject multilateral treaties and international institutions such as the Paris Climate Agreement or the World Trade Organization.⁵⁵ Although one scholar initially warned in 2020 that “[t]he Artemis Accords [were] an attempt by the Americans to walk softly to legitimise their deviation from the Outer Space Treaty,”⁵⁶ in an article published in 2021 he argued instead that:

When compared to earlier attempts of the USA which could be regarded even as moving away from multilateral law-making . . . in the Artemis Accords, the approach is significantly more measured. Instead of endeavoring to unliterally revise the notions of international space law, the Accords are a moderate attempt to come up with an interpretation that is open to broader acceptance.⁵⁷

Indeed, the Accords may be understood as an “expression of the political intent of the USA to commit itself to maintaining the principles of space law,”⁵⁸ albeit one that aims at formulating a “U.S.-friendly consensus” on its interpretation.⁵⁹ Were such a consensus to become—through mass adoption of the Accords—state practice, and thus an “authentic means of interpretation” of the provisions of the Outer Space Treaty under international law,⁶⁰ it would naturally most benefit parties that have developed the commercialization of outer space resources; establishing such a legal framework through the Accords is therefore strongly in the long-term economic interests of the United States. Nevertheless, placing U.S. interests at the heart of the Accords credits arguments that U.S. policy reinforces existing inequities in access to space-based resources between countries that have only taken the first small step into space and those which have taken a giant leap.⁶¹

IV. Conclusion

The innovations included in the Accords are not a breach of existing international space law; rather, they represent the pragmatic application of general principles that generate state practice that clarify the existing ambiguities in international space law.⁶² Through bilateral cooperation and general state practice, the precedential value of states accepting these principles by becoming signatories to the Accords will enshrine them in international law even without a formal legal instrument such as a treaty.⁶³ Further, the disruptive nature of the Accords is not limited to the provisions governing the extraction of space-based resources; instead, the most significant innovation might actually be in establishing that individual states can develop practical regulations for outer space activities in collaboration with selected international partners and thus “noticeably depart from the practice of negotiating the governing principles of international space law within the United Nations.”⁶⁴

Cover Photo by NASA Johnson on Flickr and licensed under CC BY-NC-ND 2.0.

James Hardman

After graduating from the University of Cambridge with a degree in French and Russian, James Hardman worked for over six years as a consultant investigator for a boutique London investigations firm with a focus on international dispute resolution and cross-border asset tracing. He and his wife moved to Cincinnati in 2020 to be closer to her family and to embark on a new career in law. James is particularly interested in international commercial law and in his free time is an avid player of boardgames.

References

1
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. I, Jan. 27, 1967, 18 U.S.T. 2410 [hereinafter Outer Space Treaty].
2
See generally David Fidler, The Artemis Accords and the Next Generation of Outer Space Governance, Council on Foreign Rels. (June 20, 2020), https://www.cfr.org/blog/artemis-accords-and-next-generation-outer-space-governance.
3
The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, NASA (Oct. 13, 2020), https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf [hereinafter Accords].
4
Although the Accords are commonly described as bilateral agreements, one space law scholar, Stephen Hobe, has argued that the Accords resemble a “unilaterally formulated text, which other Parties may sign, without having participated in the formulation of its provisions, differing therefore from the archetypical logic of accession to international agreements under Art. 15 [Vienna Convention on the Law of Treaties].” Stephen Hobe, The Artemis Accords: What they Mean for the Development of International Space Law 5 (2021). Thus, although the terms of the Accords are based on existing international space law, they contain “an interpretation offered and articulated by the United States alone.” Id.
5
Including Australia, Bahrain, Brazil, Canada, Colombia, France, Israel, Italy, Japan, the Republic of Korea, Luxembourg, Mexico, New Zealand, Poland, Romania, Rwanda, Saudi Arabia, Singapore, Ukraine, the United Arab Emirates, the United Kingdom, and the United States. See The Artemis Accords, NASA, https://www.nasa.gov/specials/artemis-accords/index.html (last visited Feb. 15, 2023).
6
Accords, supra note 3.
7
For example, Russia specifically criticized the Accord’s treatment of outer space resources in a statement at the 29 March meeting of the Legal Subcommittee of the U.N. Committee on the Peaceful Uses of Outer Space (“COPUOS”), highlighting concerns at “attempts by certain space actors to legalize at the national level the appropriation of extracted mineral space resources and to enshrine a special legal regime for mined areas of celestial bodies by establishing ‘security zones’ on them.” See Выступление делегации Российской Федерации по пункту 15 «Общий обмен мнениями о возможных моделях правового регулирования деятельности по исследованию, освоению и использованиюкосмическихресурсов» [Statement by the Delegation of the Russian Federation on Item 15 “General Exchange of Views on Possible Models for the Legal Regulation of Research, Development and Space Resources Utilization”] (Mar. 29, 2022), https://www.unoosa.org/documents/pdf/copuos/lsc/2022/Statements/15_Russian_Federation_29_March_AM.pdf [hereinafter Russian Delegation Statement]. Likewise, the Chinese representative affirmed that the “interpretation and application” of the provisions of the Outer Space Treaty should address the rights and concerns of all party states, indirectly admonishing the United States for the bilateral approach taken under the Accords, and pointing out that the Outer Space Treaty required that “the exploration and use of outer space should be for the benefit of all countries” and that “countries must not appropriate outer space . . . for their own.” 中国代表在联合国外空委法律小组委员会第61届会议上关于“空间资源探索、开发和利用活动的潜在法律模式的一般意见交流”议题的发言 [Statement by the Chinese Representative at the 61st Session of the Legal Subcommittee of the United Nations Committee on Outer Space Resources on the Topic of “General Exchange of Views on Possible Models for the Legal Regulation of Research, Development and Space Resources Utilization”], https://www.unoosa.org/documents/pdf/copuos/lsc/2022/Statements/29MarAM/Item15/15_China_.pdf [hereinafter Chinese Representative Statement].
8
Outer Space Treaty, supra note 1.
9
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570 (expanding on article V of the Outer Space Treaty and laying out how all states have an obligation to rescue or provide assistance to the personnel of a spacecraft if they are in distress or in an emergency situation).
10
Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389 (expanding existing liability rules in the space context).
11
Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695 (requiring states to register the details about each space object that is launched into space with the UN).
12
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 2.
13
Exec. Order 13,914, § 2, 85 Fed. Reg. 20,381 (Apr. 6, 2020) (“The United States is not a party to the Moon Agreement. Further, the United States does not consider the Moon Agreement to be an effective or necessary instrument to guide nation states regarding the promotion of commercial participation in the long-term exploration, scientific discovery, and use of the Moon, Mars, or other celestial bodies.”).
14
Fidler, supra note 2.
15
Treaty Record, Saudi Arabia: Accession to Moon Treaty (Celestial Bodies), U.N. Off. For Disarmament Affs., https://treaties.unoda.org/a/moon/saudiarabia/ACC/un (last visited Feb. 16, 2023).
16
U.S. Dep’t of State Press Release, Kingdom of Saudi Arabia Signs the Artemis Accords, Dep’t of State (July 16, 2022), https://www.state.gov/kingdom-of-saudi-arabia-signs-the-artemis-accords/.
17
See U.S. Dep’t of State Treaty Narrative, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Dep’t of State, https://2009-2017.state.gov/t/isn/5181.htm (last visited Feb. 15, 2023).
18
See U.S. Dep’t of State Treaty Narrative, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Dep’t of State, https://2009-2017.state.gov/t/isn/5181.htm (last visited Feb. 15, 2023).
19
G.A. Res. 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (Dec. 13, 1963).
20
Treaty Record, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, U.N. Off. For Disarmament Affs., https://treaties.unoda.org/t/outer_space (last visited Feb. 15, 2023).
21
See About Us, History, Treaties, U.N. Off. of Outer Space Affs., https://www.unoosa.org/oosa/en/aboutus/history/treaties.html (last visited Feb. 15, 2023).
22
Outer Space Treaty, supra note 1, at art. I-VI.
23
Outer Space Treaty, supra note 1, at art. II.
24
Department of Defense and Full-Year Continuing Appropriations Act, 2011, Sec. 1340(a), Pub. L. 112-10, 125 Stat. 38, 123 (Apr. 15, 2011) (“None of the funds made available by this division may be used for the National Aeronautics and Space Administration or the Office of Science and Technology Policy to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.”).
25
U.S. Commercial Space Launch Competitiveness Act, Sec. 402, Pub. L. 114–90, 129 Stat. 704, 721 (Nov. 25, 2015), https://www.congress.gov/114/statute/STATUTE-129/STATUTE-129-Pg704.pdf.
26
Section 51303 of the law, relating to “Asteroid resources and space resource rights,” states that a “US citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained.” U.S. Commercial Space Launch Competitiveness Act, Sec. 51303, Public Law No: 114-90 (Nov. 11, 2015).
27
“It is the sense of Congress that by the enactment of this Act the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” U.S. Commercial Space Launch Competitiveness Act, Sec. 403, Public Law No: 114-90 (Nov. 11, 2015).
28
Exec. Order 13,914, supra note 13, §§ 1, 3.
29
National Space Policy of the United States of America, Trump White House Archives at 5 (Dec. 9, 2020), https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/12/National-Space-Policy.pdf.
30
See United States Space Priorities Framework, The White House (Dec. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/united-states-space-priorities-framework-_-december-1-2021.pdf.
31
See International Partners Advance Cooperation with First Signings of Artemis Accords, NASA (Oct. 13, 2020), https://www.nasa.gov/press-release/nasa-international-partners-advance-cooperation-with-first-signings-of-artemis-accords.
32
Although many technical elements of the Artemis Program such as the Space Launch System rocket or the Orion crew vehicle originated in earlier U.S. space programs, the Artemis Program itself officially began under the administration of President Donald J. Trump, who already in December 2017 with Space Policy Directive 1 had demanded NASA re-focus on manned space missions. See Space Launch System Engines: Launching Artemis Astronauts to the Moon, NASA (Oct. 28, 2022), https://www.nasa.gov/exploration/systems/sls/space-launch-system-engines-launching-artemis-astronauts-to-the-moon.html; Presidential Memorandum on Reinvigorating America’s Human Space Exploration Program, Trump White House Archives (Dec. 11, 2017), https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-reinvigorating-americas-human-space-exploration-program/.
33
Jeff Foust, Artemis 1 Success Earns Widespread Praise, SpaceNews (Dec. 12, 2022), https://spacenews.com/artemis-1-success-earns-widespread-praise/.
34
Accords, supra note 3.
35
Id. § 10 (“The Signatories 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.”).
36
Id. § 11, ¶ 10.
37
Id. ¶ 11.
38
Id. ¶ 10.
39
Id. ¶ 11.
40
Remarks by Vice President Pence at the Fifth Meeting of the National Space Council, Huntsville, AL, Trump White House Archives (Mar. 26, 2019), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-vice-president-pence-fifth-meeting-national-space-council-huntsville-al/.
41
China to Build Moon Station in ‘About 10 Years’, Phys (Apr. 24, 2019), https://phys.org/news/2019-04-china-moon-station-years.html.
42
Rosanna Deplano, The Artemis Accords: Evolution or Revolution in International Space Law?, 70 Int’l & Compar. L. Q. 801, 812 (2021).
43
Accords, supra note 3, § 10, ¶ 2.
44
Outer Space Treaty, supra note 1, at art. II.
45
Nevertheless, the United States’ chief geopolitical rivals in space exploration, Russia and China, have expressed disquiet at the approach to outer space resources endorsed in the Accords both at the meetings of the U.N. Committee on the Peaceful Use of Outer Space and in their respective media. See Russian Delegation Statement, supra note 7; Chinese Delegation Statement, supra note 7; see also, e.g., Russia Compares Trump’s Space Mining Order to Colonialism, Moscow Times (Apr. 7, 2020), https://www. themoscowtimes.com/2020/04/07/russia-compares-trumps-space-mining-order-to-colonialism-a69901; Deng Xiaoci, Trump Administration’s ‘Artemis Accords’ Expose Political Agenda of Moon Colonization, Show Cold War Mentality Against Space Rivals: Observers, Glob. Times (May 7, 2020), https://www.globaltimes.cn/content/1187654.shtml.
46
Submission on the Mandate and Purpose of the Working Group on Legal Aspects of Space Resource Activities, U.N. Off. for Outer Space Affs. at 5, https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/StatesResponses/RUSSIA1.PDF (last visited Mar. 16, 2023).
47
Id. at 4.
48
Alexander Stirn, Do NASA’s Lunar Exploration Rules Violate Space Law?, Sci. Am. (Nov. 12, 2020), https:// http://www.scientificamerican.com/article/do-nasas-lunar-exploration-rules-violate-space-law.
49
Id. at art. I, II.
50
Accords, supra note 3, § 11, ¶¶ 7, 7(d), 8, 11.
51
Id. ¶ 7.
52
Id. ¶ 7(d).
53
Id. ¶ 8.
54
Id. ¶ 11.
55
Fidler, supra note 2.
56
Deplano, supra note 42, at 800 (citing Stephen Hobe, Keynote Speech, International Astronautical Congress 2020).
57
Hobe, supra note 4, at 11 (2021).
58
Id. at 2.
59
Id. at 4.
60
Deplano, supra note 42, at 805.
61
Deplano, supra note 42, at 817.
62
Christopher Johnson, SpaceWatchGL Feature: The Space Law Context of the Artemis Accords (Part 2), Spacewatch (May 28, 2020), https://spacewatch.global/2020/05/spacewatchgl-feature-the-space-law-context-of-the-artemis-accords-part-2/.
63
Id.
64
Deplano, supra note 42, at 812.