Valdai Club

Before our eyes, a new version of international space law is being created, prompted by the already-begun race for the possession of space resources. Emil Sayfullin, an employee of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, a RIAC expert, writes about what risks this process entails, who is the main beneficiary and what actions Russia should take.

On June 15, 2021, Brazil signed the Artemis Accords, becoming the first country in Latin America to do so. Just a few weeks earlier, the Republic of Korea and New Zealand had joined Artemis. Thus, today the Artemis Accords have 12 participating countries: Australia, Brazil, Great Britain, Italy, Canada, Luxembourg, New Zealand, the UAE, the Republic of Korea, the US, Ukraine and Japan.

The Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes or Artemis Accords,  is today considered the main instrument of the United States of America in rolling out a well-structured programme, not even reforming it, but creating a new version of international space law. But first things first.

Washington began shaping this new legislation governing the use of space with the adoption of the US Commercial Space Launch Competitiveness Act of 2015. A key novelty of this law was the permission for US citizens and companies to commercialise and sell space resources. (Title IV — Space resource exploration and utilisation).

The adoption of this law in the United States became the starting point in the unilateral reformatting of space law. Let me remind you that the main current international legal act in the field of outer space is the "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies"  1967, better known as the Outer Space Treaty.

The key concept of the Outer Space Treaty, enshrined in its first article, is the understanding of outer space and celestial bodies as the property of all mankind.

Article 2 of the Outer Space Treaty specified: "Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on the basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies."

It would seem that there is a direct contradiction between the 2015 US Law and the provisions of the 1967 Outer Space Treaty, which prohibits any appropriation of space objects and resources. However, it's not that simple.

We are faced with an example of the skilful use of legal interpretation in the interests of the state. After all, the Outer Space Treaty speaks about national, state appropriation, but not about private companies. Thus, using the maxim "what is not prohibited is allowed" the Americans, in their opinion, did not violate the provisions of the Outer Space Treaty. Moreover, in the final clause, they even specifically noted that by adopting this law, the United States does not assert sovereignty or exclusive rights over any celestial body or ownership of it; i.e. do not violate Article 2 of the Outer Space Treaty. But at the same time, their companies are allowed to do this.

Having met with no tangible resistance or protest from the international community, the passage of the 2015 Act in the United States set a precedent. Luxembourg, the UAE and Japan adopt laws with similar content.

The next step towards shaping a new cosmic reality came in 2020, when US President Donald Trump signed an Executive Order Encouraging International Support for the Recovery and Use of Space Resources, in which he once again confirmed the right of the Americans to engage in commercial exploration, production and use of space resources. Moreover, in this decree, the United States prudently refuses to consider the 1979 "Agreement on the Activities of States on the Moon and Other Celestial Bodies" (Agreement on the Moon), as an effective or necessary legal instrument in space exploration, while adding that the Secretary of State should object to any attempt by any other state or international organisation to treat the Moon Agreement as reflecting or expressing customary international law.

This clarification was made for a reason, because the Moon Agreement, for the United States, is still a legal obstacle. The Moon Agreement, despite the fact that only 18 states are parties to it, while the Outer Space Treaty has over 100 signatory states, is nevertheless an effective source of international law, which largely eliminates the inaccuracies of the Outer Space Treaty. First of all, this concerns the norms on the appropriation of space resources, and here we will no longer find such broad possibilities for interpretation as in the Outer Space Treaty.

Part 3 of Article 11 of the Moon Agreement states that “Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become the property of any State, international intergovernmental or non- governmental organisation, national organisation or non-governmental entity or of any natural person.” As you can see, the list is exhaustive. Hence, the United States is so attentive to this Agreement that even not being a party to it, the Americans refused to recognise it as international custom. This is done in the event that a state appeals to international judicial institutions or the UN with a complaint about the mining activity of the United States in space, appealing to the  Moon Agreement: it is no longer regarded bt the US as an international treaty.

Having created the necessary national legal foundation (which is especially important for Washington), the United States began to implement its plans at the international level. On October 13, 2020, the heads of space agencies and specialised government agencies of Australia, Great Britain, Italy, Canada, Luxembourg, the United Arab Emirates, the United States and Japan signed the Artemis Accords.  In fact, this is a set of principles, small in volume and, most importantly, not a source of international law, although they are adopted as such. The fact that the Artemis Accords are not legally binding is confirmed in the draft report of the UN Committee on the Peaceful Uses of Outer Space (A / AC.105 / C.2 / L.314 / Add.3). However, it is necessary to keep in mind that principles are a fundamental element of any project. The main principle inherent in "Artemis" can be expressed as follows - Space, together with all its contents, can and should be appropriated, divided and sold.

So how can a document that is not even an international legal treaty change the whole system of international space law? What risks can this agreement carry?

The lack of legal force should not be misleading and give rise to a condescending attitude that the treaty is something frivolous.

Yes, indeed, the Artemis Accords are not a customary multilateral international treaty containing the rules of law. This is a document of so-called soft law, which is an effective and proven instrument of international relations, and if tested without unnecessary risks and costs, can subsequently be reborn into a full-fledged international treaty.

The actions of the United States are dictated and supported by the technical and financial ability to carry out such projects. It is obvious that every year there will only be more supporters of the new American vision of space law. It is impossible to stop this process, and within the next 5-10 years we will see its practical implementation.

In this situation, the Russian Federation can act in accordance with  two scenarios, which, however, can and should be combined depending on the situation. The first and main one is to continue to defend current international space law, preventing the substitution of concepts and unilateral initiatives to reform it, and even more to create an alternative version of it. Moreover, all discussions and drafts of any documents on Space should return to the UN site, avoiding fragmentation and alternatives. In this regard, we will get help through the established tandem with China, which is in solidarity with us on this issue. This fact leads to the second scenario - if the participants in the Artemis Accords still manage to implement their plans in practice and this becomes an objective reality, it is important not to abstain from the new round of space exploration. To do this, you will need to create your own new project or contribute to an existing project with China and with interested countries. Of course, this option is "extreme" because it can lead to the emergence of another area of ​​tension, and given the specifics of the place of action - the Space, the risks are too high. Of course, Russia can be offered to join Artemis, but this entails colossal reputational losses, because we will have to abandon all those principles of respecting the interests of the entire international community and the heritage of mankind that we have been defending for half a century. The reform of space law will undoubtedly happen sooner or later, but it depends on us according to what principles it will take place.