The resurgent interest in lunar exploration, epitomised by several national, international, and private missions, including the US-led Artemis missions which aim to bring humans back to the Moon by 2026, is creating an urgent need for clearer policy, regulations, and consensus on the economic utilisation of space and territorial claims. As technology advances, the evolving national and international legal frameworks governing space activities will soon be put to the test.
Nations are striving to maintain a balance between their national strategic interests in space and promoting peaceful international cooperation. Therefore, space legislation should facilitate the alignment of national interests with the goal of fostering peace. As we stand on the brink of a new era in lunar exploration, it is just as crucial for NewSpace actors to comprehend the current legal landscape. This article marks the beginning of a series delving into the lunar implications of international policy, starting with an exploration of international instruments. Future articles will unravel national and regional policies, creating a comprehensive understanding of the lunar regulatory environment across all policy levels.
Outer Space Treaty
The Outer Space Treaty (OST), adopted in 1967, reflects the global aspiration to prevent the militarization of outer space. Against the backdrop of Cold War tensions, the treaty appeared as a beacon of hope that established principles to guide future space exploration. The treaty was born from the emergence of intercontinental ballistic missiles (ICBMs) and other long-range rocket systems, during a period commonly referred to as The Space Race.[1] Its primary objective was the implementation of international law governing space exploration, weapons testing and territorial claims in space.[2]
Key Principles:
Article I - Peaceful Use: this foundational principle emphasises the use of outer space for peaceful purposes
Article II - Non-Appropriation: celestial bodies, including the Moon, cannot be subject to national appropriation
Article IV - Ban on Nuclear Weapons: states commit not to place any objects carrying nuclear weapons or other weapons of mass destruction in space or on any celestial body
Article VI - State Responsibility: states party to the treaty are responsible for their national activities in outer space, whether carried out by governmental agencies, or non-governmental entities
But what does this mean for lunar exploration? The OST serves as the bedrock of international space law, shaping the ethos of peaceful and collaborative exploration. Its principles resonate in the current space regime, emphasising cooperation and preventing national appropriation of the moon and other celestial bodies.[3] However, while a substantial number of countries (136) have signed the treaty, signatories’ rights and duties remain unclear.[4] As it is a treaty of principles, there is still significant debate as to the meaning and interpretations of the provisions of the treaty.
Moon Treaty
The Moon Treaty, created in 1979, takes a distinctive approach by declaring lunar resources as the common heritage of mankind. Despite noble intentions, it has not garnered widespread acceptance. Major spacefaring nations such as the US, China, and Japan abstained from ratification.[5] As it stands, the Moon Treaty is the only international instrument that deals specifically with issues related to space resources.
However, a point of controversy is taken with its provision declaring that all natural resources are shared and owned by all humankind/humanity and that no entity can claim them as property.[6]
Key Points:
The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means
Common Heritage: asserts that the moon and its natural resources are the common heritage of mankind
Freedom of Scientific Investigation: encourages freedom of scientific research and exploration on the Moon by any party without discrimination
The Moon Treaty's unique stance on common heritage faces challenges due to its limited adoption. In fact, while the US was active in the formulation of the Moon Treaty, it has yet to sign the agreement owing to strong pushback from several stakeholders.[7] The designation of the Moon as the common heritage of mankind, as well as the call to establish a regulatory regime which would oversee a system to equitably share resources once the technology was there for lunar exploitation saw critics from the US claiming this to mean essentially the prohibition of private industry to develop outer space.[8] A US Executive Order signed in 2020 makes the US position on this matter explicitly clear.[9] It states that the US is not a party to the Moon Treaty and declares the US will object to any attempts by any state or international body to recognize the Treaty as customary law .
Early negotiations on outer space law, mirroring those concerning the law of the sea, recognized that resolving issues around natural resource exploitation would facilitate agreement on other unresolved matters.[10] Developing countries feared being outpaced by already space-faring nations in accessing space resources. The common heritage principle was devised to balance interests, with developed states agreeing for an international regime to control over resource exploitation and developing states agreeing to refrain from advocating for a moratorium on exploitation during the establishment of said international regime.[11] The compatibility of the Moon Treaty with agreements like the Artemis Accords depends on a wide range of factors including an understanding of the common heritage principle that does not disallow property rights for space resources.
“the true test of the Moon Treaty both as treaty and customary law will not come until the exploitation of extraterritorial resources becomes technically and economically feasible.”
Listner, 2011. The Space Review
Future lunar legislation should strive for a balance that encourages international cooperation, respects property rights, and provides a universally accepted framework for lunar exploration.
Registration Convention
The Registration Convention, adopted in 1975, establishes a framework for the registration of space objects and activities. It aims to ensure the traceability of space objects and foster international cooperation. The convention builds upon the Register of Objects Launched into Outer Space which was set up in 1962, as a way to determine liability and international responsibility with regard to states and their space objects.[12] Parties to the convention are required to establish and maintain national registries on their space objects and to provide this information to the Secretary-General of the United Nations Office for Outer Space Affairs.[13]
Signatories subsequently have rights to access registry information and obligations to provide timely and accurate data.
Key Points:
Registration in practice: While the OST only implies registration and outlines the associated consequences concerning the exercise of jurisdiction and control over a registered space object, the Convention specifies the obligation and governs the procedural aspects of registering space objects.
Jurisdiction and Control: By establishing and maintaining a public register, the Convention aims to prevent the existence of unidentified space objects, mitigating risks associated with clandestine deployment of objects such as weapons of mass destruction into orbit.[14]
Enhancing transparency in space activities by establishing a mandatory registration system, sought to aid in identifying launched space objects and contribute to the development of international law in outer space exploration. However, the information provided by state parties to the United Nations' Register of Space Objects is often too general, hindering the intended transparency- with civilian satellites being registered with limited details, and military functions of objects often undisclosed or vaguely described.[15] As lunar exploration intensifies, the discourse on the registration of space objects becomes increasingly relevant, influencing how missions to the Moon are recorded and monitored.
Artemis Accords
The US-led Artemis Accords mark a contemporary effort to shape norms for lunar exploration. Established in 2020, the Accords, through its ten principles, hope to align signatory countries’ visions and goals when it comes to space exploration and the exploitation of resources. While not a legally binding treaty, the accords represent a commitment to principles fostering transparency, cooperation, and scientific discovery.
Experts argue, though, that some of the goals listed in the accords can be seen as contradictions to requirements laid out in the OST. The ambition to establish a permanent human settlement on the moon, for example, can be interpreted as a claim of appropriation from the Outer Space Treaty perspective.[16] However, the US interpretation of the non-appropriation principle is that the OST does not ban the exploitation of space resources, but rather, exploitation is a freedom guaranteed by Article I of the OST.[17]
Key Points:
Transparency: encourages open sharing of scientific data, mission plans, and information regarding national space policies of signatories to help foster the larger scientific community
Interoperability: promotes the use of open standards for space systems as a means to enhance space exploration endeavours
Peaceful Purposes: reinforces the commitment to the peaceful use of outer space, and adherence to relevant international law
With a goal to promote deconfliction in outer space activities, the Accords proposes the establishment of safety zones to facilitate in situ resource utilisation activity on the Lunar surface.[18] These safety zones would surround a participant country’s space operations, thereby reducing the risk of another actor’s activities interfering with their own. While this would, in theory, facilitate safer proximity operations on the Moon and in other locations in space, it sparks controversy as a potential violation of the OST’s non-appropriation principle.[19] This is further complicated by the lack of a clear definition of what constitutes a safety zone, making it even more difficult to ascertain legal enforceability and potential efficacy. The implementation of safety zones, and the arguments around it, will be discussed deeper in a future article in our space policy series.
The Artemis Accords, which now have 36 signatories[20] have aimed to set a tone of collaboration, transparency, and interoperability in lunar exploration- while not universally adopted, they may represent a step towards a shared lunar future. However, because the Artemis accords are US-led, they are opposed by the Russian and Chinese states, who claim that such international agreements should be defined within the framework of the United Nations.[21]
Synergies and Gaps
Promotion of Peaceful Use
The OST enshrines the principle of using outer space for peaceful purposes, laying the foundation for collaborative exploration and the principles on which further space policies would be built on. The Moon Treaty reaffirms much of the same value-based principles. “Like the three other children of the Outer Space Treaty (Rescue Agreement, Liability Convention, and Registration Convention[22]), the Moon Treaty upholds and elaborates on many of the provisions of its parent.”[23]
As for the Artemis Accords, while the specifics can be interpreted otherwise, it reaffirms the OST, emphasising the peaceful use of outer space, and aims to foster an environment conducive to international collaboration.
International Liability
When the Soviet satellite Kosmos 954 reentered the Earth’s atmosphere in 1977, it intruded into Canadian airspace, burned up in the atmosphere, and scattered radioactive debris in its wake. Following this incident, Canada sought compensation from the Soviet Union for the costs incurred in the cleanup and environmental remediation efforts. The OST holds launching states internationally liable for damage resulting from their space activities, encouraging responsible behaviour. The Soviet Union eventually agreed to pay compensation to Canada to maintain good diplomatic relations. In 1978, the USSR paid 3 million CAD for the accrued costs associated with the cleanup of the debris.[24] The Moon Treaty similarly establishes international liability, ensuring accountability for any damages caused by space activities.
Emergence of the Property Rights Debate
Despite emphasising the common heritage of lunar resources, the Moon Treaty lacks explicit guidelines on property rights for entities engaging in lunar exploration and resource utilisation. This gap introduces uncertainty about ownership and economic benefits derived from lunar activities.
The absence of explicit property rights frameworks, especially in the Moon Treaty, has spurred debates within the space community. Stakeholders are increasingly advocating for the establishment of clear guidelines to incentivise private investment and ensure equitable resource utilisation. While Article I of the OST lays out an obligation for sharing the benefits of space to all countries, regardless of economic or scientific development, the treaty does not carry with it an implementing mechanism for benefit sharing. Understanding that space has great scientific and economic potential, benefit sharing means equitable distribution of these benefits with developing nations, to include those that might come later into the space sector.[25]
Through well-defined terms for benefit sharing, a space-based economy that is grounded on the OST would acknowledge that countries and their respective citizens would retain the rights and privileges of using space resources without interference; thus negating the need for a new governing body to claim authority over space activities and resources.[26]
Growing Role of Private Actors
While the existing set of international instruments does not comprehensively address the question of private entities in lunar exploration, it does subordinate these entities under the states in which they operate. States are held responsible for the actions of private actors within their purview. Thus, states that intend to foster a thriving private sector in space stand to benefit from introducing domestic policies that enable private actors to conduct themselves and their ventures with the full understanding of their roles, rights, and responsibilities.
With an increasing number of private entities venturing into space, there is a growing need to address the legal status, rights, and responsibilities of private actors in lunar exploration. Especially in the case now where the rapid evolution of space technology has made the commercial exploitation of natural resources on the Moon all but certain[27], future international instruments need to explicitly incorporate provisions that regulate the activities of private entities.
National Responses in Brief
With the goal to bridge perceived gaps in the international regime and to give private entities a framework to operate within, states have come up with their own domestic policies that deal with the ownership of space resources. While the next article in this series will provide an in-depth analysis of these national policies, the following section will offer a concise overview, presenting a broad understanding of how countries have taken it upon themselves to define space laws that work for them.
US SPACE Act of 2015
The SPACE act sought to encourage private sector investment, and to facilitate a pro-growth environment for the commercial space sector. Under the SPACE act, the Space Resource Exploitation and Utilization Act (SREUA) grants property rights for space resources, to include asteroid mining[28]; however, it explicitly prohibits the assertion of property claims in situ. Recovery of space resources will confer property rights, however, the celestial body from which the resource is recovered, is not covered by the property regulations, thus ensuring compatibility with the OST’s provisions regarding sovereign claims on celestial bodies.[29]
Luxembourg Space Resources Law 2017
Luxembourg’s domestic space law states, outright, that space resources can be owned.[30] Through this law, any space resources operator can apply for permission from the government to conduct commercial space activity that uses and explores space resources provided that it is a Luxembourg-based company that is incorporated as one of the following legal forms[31]:
Public company limited by shares
Corporate partnership limited by shares
Private limited liability company
European Company (SE)
Once granted, these non-transferable licences would authorise operators to conduct activities that are both in line with the conditions granted therein, as well as with Luxembourg’s international obligations. Further, the permit is also non-assignable, meaning that the approval for space resource exploration and use cannot be done by another party for the authorised company.[32] However, this authorisation can be withdrawn once granting conditions are not met, when the authorisation remains unused after 36 months, or when it is found to have been obtained through false or irregular means. As for liability, operators granted mission authorisation are fully responsible for any damage caused for the whole duration, to include the execution of all preparatory works related to the mission.[33]
UAE Space Law 2019
Similar to the rationale behind the SPACE Act, the UAE wanted to encourage investment in the space sector, while also ensuring that the mandatory safety and security measures are in place to boost its activities in the sector and reaffirm its commitment to current international space instruments. 2019 saw the adoption of Federal Law No. (12) of 2019 on the Regulation of the Space Sector, otherwise known as the UAE Space Law, as well as the release of the UAE’s National Space Strategy 2030.[34] With regard to property rights, while it does not explicitly state that space resources can be owned or exploited, the law requires a permit for operators to participate in any space activity- to include the exploration and extraction of space resources for scientific, commercial or other purposes. The Law applies to activities within the state, activities from UAE-flagged vessels, from space objects registered by the UAE, and to both UAE nationals, as well as companies that maintain their headquarters in the UAE.[35]
Japan Space Resources Act of 2021
The act allows Japanese private entities to explore, extract, and use space resources. It defines space resources as water, minerals, and other natural resources that exist in outer space, including on the moon and other celestial bodies.[36] The act states that space activities, to include resource extraction, can only be executed with the appropriate permit. In applying for this permit, an operator must submit a business activity plan that elaborates on the intent of the activity, the method of extraction, location, and other information.[37] Only those that intend to launch from Japanese land, or parties that would be controlling a spacecraft from within Japanese borders are allowed to apply for the permit.
The Act reaffirms its commitment to international law by stating that its adoption and enforcement will be implemented in good faith with existing international treaties such as the OST, and international agreements that Japan is party to, to include the Artemis Accords. [38]
The Road Ahead
As lunar stakeholders actively engage in shaping the regulatory landscape, recent technological triumphs have played a pivotal role in minimising uncertainties. The successful Indian moon mission, Chandrayaan-3, exemplifies the strides made in overcoming challenges, paving the way for renewed interest in lunar exploration. Technological developments have helped buy down the uncertainty in this case.
The lunar policy landscape is a dynamic interplay of historical contexts, contemporary challenges, and future aspirations. From the foundational principles of the Outer Space Treaty to the innovative and collaborative spirit embodied by the Artemis Accords, these international instruments set the stage for humanity's continued venture into the cosmos.
“as more countries pass domestic legislation addressing property rights in space, international space law will need to change to accommodate these laws”
DePagter, 2022. Chicago Journal of International Law
As lunar exploration gains momentum, a nuanced understanding of the evolving policy landscape becomes imperative. With governments and international bodies scrambling to codify their definitions of good behaviour, and with NewSpace actors standing to benefit from being involved in the policy discussion that will ultimately define actions in space, there is a clear need for accessible information on the policy discourse. This need forms the foundation for subsequent articles, promising an in-depth analysis of national and regional policies, ensuring well-informed discussions toward comprehensive lunar governance.
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Header Image: Artist's rendering of astronauts conducting science and exploration activities on the lunar surface. Image from NASA.
References
[1] Center for Arms Control and Non-Proliferation, Outer Space Treaty, https://armscontrolcenter.org/outer-space-treaty/
[2] Ibid.
[3] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. II
[4] Morgan M. DePagter, “Who Dares, Wins:” How Property Rights in Space Could be Dictated by the Countries Willing to Make the First Move, Chicago Journal of International Law, https://cjil.uchicago.edu/online-archive/who-dares-wins-how-property-rights-space-could-be-dictated-countries-willing-make
[5] Robert Heins, Shoot for the Moon: If You Miss, You’ll Land Among Valuable Asteroids: An Analysis of the Legal Ramifications of Asteroid Mining, Forthcoming in Jurimetrics, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3743074
[6] Michael Listner, The Moon Treaty: Failed International Law or Waiting in the Shadows?, Space Review, https://www.thespacereview.com/article/1954/1
[7] Nancy L. Griffin, Americans and the Moon Treaty, Journal of Air Law and Commerce, https://scholar.smu.edu/cgi/viewcontent.cgi?article=2314&context=jalc
[8] L-5 News, UN Moon Treaty Falling to US Opposition Groups, https://nss.org/l5-news-un-moon-treaty-falling-to-us-opposition-groups/
[9] Executive Order 13914 (2020). Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/
[10] Patricia Minola, The Moon Treaty and the Law of the Sea, San Diego Law Review, https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1783&context=sdlr
[11] Hosenball, S.N., The United Nations Committee on the Peaceful Uses of Outer Space: Past Accomplishments and Future Challenges, Journal of Space Law, 7, 95
[12] United Nations Office for Outer Space Affairs (UNOOSA), United Nations Register of Objects Launched into Outer Space, https://www.unoosa.org/oosa/en/spaceobjectregister/index.html
[13] Ibid.
[14] Anja Nakarada Pečujlić, Registration Convention, Oxford Research Encyclopedia of Planetary Science, https://oxfordre.com/planetaryscience/display/10.1093/acrefore/9780190647926.001.0001/acrefore-9780190647926-e-132
[15] Ram S. Jakhu, et. al, Critical Issues related to Registration of Space Objects and Transparency of Space Activities, Acta Astronautica
[16] Rossana Deplano, The Artemis Accords: Evolution or Revolution in International Space Law?, Cambridge University Press, https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/artemis-accords-evolution-or-revolution-in-international-space-law/DC08E6D42F7D5A971067E6A1BA442DF1
[17] Balázs Bartóki-Gönczy, et. al, The Artemis Accords, International Legal Materials, https://www.cambridge.org/core/journals/international-legal-materials/article/artemis-accords/5874DB518591888E52CF2B816E4593F0
[18] Ben McKeown, Artemis Accords: Are Safety Zones Practical for Long Term Commercial Lunar Resource Utilisation?, Space Policy, https://www.sciencedirect.com/science/article/abs/pii/S0265964622000303#:~:text=The%20Accords%20and%20other%20soft,of%20the%20Outer%20Space%20Treaty
[19] Alexander Q. Gilbert, Implementing Safety Zones for Lunar Activities under the Artemis Accords, Journal of Space Safety Engineering
[20] As of February 2024.
[21] Lisa Becker, ‘Fly Me to the Moon’ - What are the Artemis Accords and What Do They Mean for Russia-US Cooperation on the Moon?, University Consortium - University of Oxford, https://uc.web.ox.ac.uk/article/fly-me-to-the-moon-what-are-the-artemis-accords-and-what-do-they-mean-for-russia-us-cooperat
[22] United Nations Office for Outer Space Affairs (UNOOSA), Space Law Treaties and Principles, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html
[23] Listner, supra
[24] Settlement of Claim between Canada and the Union of Soviet Socialist Republics for Damage Caused by “Cosmos 954” (Released on April 2, 1981), Accessed through JAXA Space Law Library: https://www.jaxa.jp/library/space_law/chapter_3/3-2-2-1_e.html
[25] National Space Society, “Benefit Sharing” Terms of Reference, https://nss.org/wp-content/uploads/NSS-benefit-sharing-terms-of-reference-2023.pdf
[26] Ibid.
[27] Deplano, supra
[28] R. Ridderhof, Space Mining and (U.S.) Space Law, Peace Palace Library
[29] Kasey Tuttle, Senate approves bill to legalize space mining, JURIST News, https://www.jurist.org/news/2015/11/senate-approves-bill-to-legalize-space-mining/
[30] Luxembourg Space Agency, Law of July 20th 2017 on the Exploration and Use of Space Resources. https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html
[31] Arendt & Medernach, In review: space law, regulation and policy in Luxembourg, https://www.lexology.com/library/document.ashx?g=7df17576-3fa8-4d40-a2bb-2f1f786787a3
[32] US Library of Congress, Luxembourg: Law on Use of Resources in Space Adopted, https://www.loc.gov/item/global-legal-monitor/2017-08-22/luxembourg-law-on-use-of-resources-in-space-adopted/
[33] Luxembourg Space Agency, supra
[34] Aslan Abashidze et al., The United Arab Emirates approach towards international space law: Divergence or convergence?, Acta Astronautica
[35] Kayaan Unwalla et al., Global Outer Space Guide: United Arab Emirates (UAE), Norton Rose Fulbright, https://www.nortonrosefulbright.com/en/knowledge/publications/e2a4dae0/global-outer-space-guide-uae#:~:text=The%20UAE%20Space%20Law%20regulates,space%20resources%20and%20space%20exploration
[36] US Library of Congress, Japan: Space Resources Act Enacted, https://www.loc.gov/item/global-legal-monitor/2021-09-15/japan-space-resources-act-enacted/
[37] Ibid.
[38] UN COPUOS, Legal Subcommittee 62nd Session, Japan Item 10 - “General exchange of views on potential legal models for exploration, exploitation, and utilization of space resources”, https://www.unoosa.org/documents/pdf/copuos/lsc/2023/Statements/22_PM/10_Japan_21_Mar_AM_r1.pdf