Image: NASA’s Curiosity rover at Glen Etive, Mars. Source: NASA.

THE PROSPECT OF EXPLOITING celestial bodies for their natural resources may seem provocative at a time when the misdeeds associated with the overexploitation of our own planet’s riches are the subject of global awareness.

Still, the USA’s Artemis program, aiming to return humans to the Moon by 2024 – a prelude to the ultimate goal of conquering Mars – postulates that the viable and sustainable exploration of the Moon and Mars depends on the use of its natural resources.

But such ambition does not go without its set of issues. First of all: Is the exploitation of outer space’s resources legally possible, and who decides on this matter?

The United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS) explored this very question from 1959. And as soon as 1967, international space law found its first binding expression in the so-called Outer Space Treaty (OST), formally known as the Treaty on principles governing the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies.

This treaty has been ratified by most countries, including all the major space powers – the USA, Russia, China, France, and Japan. Among other things, the treaty uses up the notion of freedom as a guiding principle: freedom of exploration and freedom of use of space are thus enshrined as “the prerogative of all mankind.”

Naturally, the treaty aims to provide a framework for this freedom, to preserve space and celestial bodies from war, territorial predation, and other kinds of vicissitudes. Thus, the exploration and usage of space can only be undertaken for peaceful purposes. But the treaty does not prohibit the launching of satellites intended for national defense on Earth.

A further 1979 treaty established two additional principles, regarding the Moon specifically. First, the Moon and its natural resources constitute “the common heritage of mankind” and cannot, therefore, “become the property of States, international organizations […], national organizations or individuals.” Second, signatories pledged “to govern the exploitation of these resources when such exploitation is about to become feasible.”

According to that treaty, exploitation of the Moon’s resources should allow for the “equitable sharing by all parties in the benefits derived from those resources, whereby the interests and needs of the developing countries… shall be given special consideration.” Sadly, the collectivist orientation of this agreement has largely compromised its acceptance by the international community, starting with the USA. At present, only eighteen countries are parties to the 1979 agreement, none of them being major space powers.

Still, today, all forms of appropriation of celestial bodies are prohibited. Which begs the question: Does that mean that future industrial and commercial exploitation of space’s natural resources can appropriate solely the resources themselves, and not the planets, asteroids, or stars that contain them?

That issue came to light in the early 2010s, as the prospect of space resource exploitation started to take shape in the USA. Take, for instance, the creation of private companies such as Planetary Resources, or the dissemination of think-tank reports on private ownership in space.

In November 2015, the US Congress passed the so-called Space Act. In short, it grants American citizens involved in the exploitation of space deposits the right to own, transport, use, or sell the extracted resources. At the time, lawmakers argued that this does not violate the OST’s non-appropriation principle, insofar as US citizens would not appropriate the celestial bodies themselves but only their resources, once extracted.

Yet, several legal experts have come to doubt that the principle of non-appropriation of celestial bodies tolerates the appropriation of natural resources. This particular issue has been a tough one to settle – for the problem of the exploitation of natural resources in space had not been considered in 1967 when the OST came to be.

In 2017, Luxembourg followed suit and passed a law explicitly stating that “space resources can be subject to appropriation.” And in February 2020, the United Arab Emirates, a rising player in the space sector, passed similar legislation.

The United Nations took up the issue in 2016, but their work so far has limited itself to a simple exchange of views between different countries, and the established committee has no mandate to undertake any normative work. The international community’s views on this issue are mixed.

Some, like Russia, are staunchly opposed to unilateral initiatives aimed at regulating space exploitation. And several States, including France, consider that the United Nations is the only competent forum and should conduct in-depth work on a framework for the exploitation of space resources. But lack of consensus has blocked progress to set up even a working group on the matter.

Unfortunately, this relative paralysis and the international community’s inability to undertake a multilateral initiative are commonplace across several new issues of space law. Crucially, it has left the field open to the rise of unilateralism.

The USA shifted into high gear on April 2020: An Executive Order enshrined the legal position expressed by the 2015 Space Act, and reaffirmed the right of American citizens to recover, own, use, or sell space’s natural resources. Moreover, this text called for like-minded countries to find common positions on the exploitation of space resources. Which led, a few weeks later, to the announcement of the Artemis Agreements.

The Artemis Agreements will most likely consist of bilateral agreements between the USA and its partners. The goal is to establish common principles governing civil exploration and usage of the Moon, and, one guesses, of Mars. The signature of these agreements will undoubtedly constitute a prerequisite for any country that wants to be involved in future American exploration efforts. The exploitation of space’s resources, as well as the thorny question of designating safety zones, are but a few of the issues tackled by these agreements.

NASA has reiterated on several occasions that the governance of celestial bodies must comply fully with existing international law, in particular the 1967 OST. At a time when the USA is backing off from international agreements and questioning the very legitimacy of international organizations and entities, it may be reassuring to note that it does not intend to free itself completely from the rules that have until now enabled the sustainable and peaceful use of outer space by all.

However, the formalization of common principles around an American center of gravity constitutes a severe blow to multilateralism. After all, since 1959, and until now, the United Nation’s COPUOS appeared to be the only forum for the development of international norms and rules governing space activities.

By filling in some of the gaps present in the 1967 OST, the Artemis Agreements might end up shadowing possible multilateral instruments. Not to mention, the negotiating capacity of future US partners will almost certainly be reduced to a minimum. In the end, the Artemis Agreements will essentially consist of a form of contract adhering to the American vision of the regulation of human activities on celestial bodies.

Understandably, the first reactions aroused by the US initiative have been strong. Dmitry Rogozin, head of Russia’s space agency Roscosmos, compares it to the invasion of Iraq and Afghanistan. For so many reasons, serious dialogue at the United Nations between the day’s major space powers is of the essence.


The ConversationThis article is republished from The Conversation France under a Creative Commons license. Click here for the original article. It has been translated into English by Murillo Salvador.