For fans of science fiction and for certain investors, the eventuality of space mining is a given, despite recent setbacks. The extraction of resources from the Moon and other celestial bodies —such as mining asteroids for precious metals, harvesting helium-3 from lunar regolith, or using ice on the Moon for a moonbase—is described as having the potential of a “New Gold Rush” that would transform the world economy. However, this is a contentious topic in international law, asking important questions about treaty interpretation and state responsibility. And it has somehow become part of two news cycles in the last month.  So, international lawyers should tune-in. It’s a cliff-hanger.

Reuters is reporting that the U.S. is pursuing the “Artemis Accords,” a new international agreement that would support space mining:

“The Artemis Accords, named after the National Aeronautics and Space Administration’s new Artemis moon program, propose “safety zones” that would surround future moon bases to prevent damage or interference from rival countries or companies operating in close proximity.

The pact also aims to provide a framework under international law for companies to own the resources they mine, the sources said.”

It seems that States that would like to participate in the US’s new Moon program must first undersign the norms set out in the proposed Accords.  While, as of this writing, a draft text has neither been made public nor shared with other possible signatory States, we can use this summary to consider whether  the Artemis Accords would be one small step (or one giant leap) for both for U.S. policy and for the progressive development of space law.  Or would it be forward for the former but backward for the latter?

What we know so far about the proposed Artemis Accords can be contextualized with recent US policy statements and current international law related to space activities. On April 6, President Trump issued an executive order directing the Secretary of State to foster international support for the US’s view of the legality of Moon and asteroid mining. The order also stated that “[o]uter space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.”

Various States and international lawyers have criticized such activities as a violation of Article 2 of the Outer Space Treaty (OST), which states: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”  Some argue that this is a similar regime to the Antarctic Treaty, which allows scientific bases on that continent, but not commercial resource mining, at least for the time being.

However, those who interpret space mining as consistent with the OST respond that OST Article 2 focuses on “national appropriation,” which is best understood as the acquisition of sovereign territory. They argue that such an interpretation is supported by references to a “claim of sovereignty” and “use or occupation,” terminology related to methods of territorial acquisition by States under international law. While the OST may prohibit such claims—planting a flag on the Moon does not mean the Moon is now that country’s territory—it does not prohibit commercial activities on the Moon or other celestial bodies. Here, the analogy could be to activities in the high seas: while no State owns the high seas, commercial fishing on the high seas is not prohibited (see, UN Convention on the Law of the Sea, art. 116), nor is the taking of such resources viewed as an extension of State sovereignty over the high seas.

But opponents to commercial space mining respond to this with a reference to Article 6 of the OST, which details a special responsibility regime for space activities, stating, in part:

“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.”

For example, the US is responsible for all of its “national activities” in space, including such activities by “non-governmental entities.”  Such activities require governmental authorization and supervision. Consequently, according to this interpretation, the US would be internationally responsible for any mining activities by US companies and this would be tantamount to the US establishing regulatory authority, and thus sovereignty, over part of the Moon or other celestial body. (There are other possible arguments from both sides, but I will leave it at that for the purposes of this post.)

Implicitly, this has not been the US interpretation of OST Article 6 under either Democratic or Republican administrations. For example, the US Commercial Space Launch Competitiveness  Act of 2015 authorizes a US citizen to “possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.’’  While this does include the qualifier that activities must be in accordance with international obligations, it is understood that such obligations regulate the manner of commercial resource extraction but do not prohibit such extractions, in toto.  (It bears noting that there was no mention in the 2015 Act of a rejection of outer space as a commons.  The Trump Executive Order does just that and that unnecessary rejection is especially striking as it can have broader implications.)

This brings us back to the April 2020 Executive Order.  Besides tasking the Secretary of State with finding support for the U.S. interpretation of the OST, it also stated “the Secretary of State shall object to any attempt by any other state or international organization to treat the Moon Agreement as reflecting or otherwise expressing customary international law.”  Thus, besides trying to build support for the US interpretation of the OST, the Executive Order also set out a policy of persistent objection towards claiming the Moon Agreement (MA) as expressing customary international law.  The MA is neither in force nor is the US a signatory.  But Article 11 of the MA includes a statement that Moon resources shall not become the property of any State or non-governmental entity that is more clearly applicable to commercial mining than the contested OST language. Thus, the Trump Administration likely wants to avoid the MA, and in particular this article, from becoming accepted as a statement of customary international law.

The Artemis Accords would continue the policy set forth in the April 2020 Executive Order.  The US’s drafting strategy is to first conclude the Artemis Accords with like-minded states, including Canada, Japan, various European countries, and the United Arab Emirates.  Russia, seemingly, not invited at this point.  (There is a statutory prohibition on space cooperation with China, unless there is prior authorization by Congress.)  Space News reports that NASA Administrator Jim Bridenstine recently promoted NASA’s role in supporting a theory of national power known as DIME, for diplomatic, information, military and economic power. NASA has a major role to play in all aspects of the DIME model other than military, he argued.

According to Reuters, Bridenstine explained that:

“The important thing is, countries all around the world want to be a part of this. That’s the element of national power,” … adding that participation in the Artemis program is contingent on countries adhering to “norms of behavior that we expect to see” in space.”

This is somewhat reminiscent of a similar strategy attempted by capital-exporting States with the negotiation of a Multilateral Agreement on Investment (MAI) in the 1990s. The goal was an investor-friendly text that capital-importing States could then choose to join, or not.  But foregoing becoming a party to the MAI would have supposedly hurt the ability of poorer States to attract investors.  So, theoretically, many States would want to sign-on to the MAI.  The reality was a bit different from the theory, though, as disagreements within and among the capital-exporting MAI drafting-States led to the process ultimately being abandoned.  A cautionary tale for anyone putting too much weight on the assumption that the carrot of participating in the US’s Artemis program would necessarily lead to agreement on the legal interpretations the US is proposing. This is partially dependent, of course, on the substance of those proposed norms.

All that being said, I do assume that the Accords will be written and that a number of States will join the Accords. If that is the case, and if the agreement interprets the OST as not prohibiting mining and private ownership of extracted resources, then the status of the Accords in international law may itself be a source of disagreement.  Accord member States might view it as an inter se agreement among certain members of the Outer Space Treaty, clarifying what they view as the OST’s vague language. Others may see this as a violation of a pre-existing treaty that had (in their view) clear language of prohibition. Rather than building momentum for the US interpretation of the OST, the process of seeking support for the Accords could inadvertently galvanize opposition. (Remember the MAI.)

The Accords may be successful in consolidating opinion concerning the acquisition and commercialization of space resources.  We do not yet have a text, so only time will tell. What is clear at this point is that we are entering a more active phase of contestation of rules regarding the activities of private actors in space. This may include one or more new international agreements with significant normative content, which is somewhat surprising as many have assumed that most law-related activity concerning space in the near-term would be through the development of non-binding norms and ongoing discussions over the interpretation of existing treaties.  That may still be the case. But whether the Artemis Accords will be largely criticized as a hegemonic power play or accepted as a clarification of international law will ultimately decide if this will be a step forward for US policy, for the development of the space law regime, for both… or possibly for neither.

Stay tuned.

Professor Chris Borgen is co-director of the Law School’s Center for International and Comparative Law. He is past Co-Chair of the American Society of International Law’s Space Law Interest Group and was a core expert  for a proposed Manual on the International Law of Military Space Operations. This article published originally at Opinio Juris, a blog that Professor Borgen co-founded, on August 5, 2020.