Space technology has had a profound impact on International Relations and International Law. In this sense, since the beginning of the Cold War, the exploration of outer space has become the object of military and geopolitical confrontations, writes Luis Castillo Argañarás, Research Fellow at the National Council of Scientific and Technical Research of Argentina (CONICET).
Manfred Lachs, former Judge of the International Court of Justice, pointed out in his course at The Hague Academy of International Law that "the great adventure began when (on October 4, 1957) the first Sputnik was put into orbit around the Earth and transmitted scientific data from outer space".
Space technology has had a profound impact on International Relations and International Law. In this sense, since the beginning of the Cold War, the exploration of outer space has become the object of military and geopolitical confrontations. It was noted that "outer space has not been fully demilitarised". However, extensive international cooperation is developing in this field.
An important milestone in the progressive development of international space law is “The Artemis Accords. Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets and Asteroids for Peaceful Purposes”. It was adopted on October 13, 2020.
The agreement was signed by the Space Agencies of the United States of America, Australia, Canada. Italy, Japan, Luxembourg, the United Arab Emirates and the United Kingdom. Later other space agencies joined it. Neither Russia nor China is part of the agreement.
It cannot be considered to be a treaty in accordance with International Law or the 1969 Vienna Convention on the Law of Treaties, since the signatories are not subjects of international law.
The purpose of The Artemis Accords is to establish a set of principles or guidelines and best practices for the exploration and use of outer space to promote the sustainable and beneficial use of outer space for all mankind.
One of its controversial points is “Section 10 – Space Resources”. Max Daniels notes that the 1967 Space Treaty “makes no mention of resource extraction, which was instead accounted for in the Moon Agreement (1979) signed by 18 states. This declared resources ‘the common heritage of (hu)mankind’, a framework that its supporter argue would have led to a fairer distribution of lunar resources”.
The Moon Treaty did not get many ratifications. Nor did the major space powers. In that order of ideas, it cannot be considered to be part of general international law or international customary law.
Section 10, paragraph 2 of the Artemis Accords states 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 that treaty. This provision would allow mining in space with the participation of private entities. In that sense you can refer the Luxembourg legislation that allows private enterprises to engage in space-related exploration and provides a legal framework for private undertakings.
Section 11 of the Accords establishes the “Deconfliction of Space Activities”. Paragraph 2 of this Section specifies “The Signatories affirm that the exploration and use of outer space should be conducted with due consideration to the United Nations Guidelines for the Long Term Sustainability of Outer Space Activities adopted by the COPUOS in 2019, with appropriate changes to reflect the nature of operations beyond low Earth orbit”. “This raises the question of whether the provisions of Section 11 of the Artemis Accords constitute subsequent practice under Article 31 (3) (b) of the Vienna Convention on Law of Treaty (VCLT)”.
Taking into account private entities and the possible extraction activities of natural resources from space, the “Guideline A.3 Supervise National Space Activities” linked to the international responsibility of the State in relation to the national activity of its private entities has special meaning and "Guideline A.5 Enhance the practice of registering space objects", which refers to UN General Assembly Resolution 62/101 Recommendations to improve the practice of States and intergovernmental organisations regarding the registration of space objects. It is emphasised that States and intergovernmental organisations, when registering a space object, should bear in mind the need to provide timely information that contributes to the long-term sustainability of outer space activities and also consider the possibility of communicating information on space objects, their operation and situation. Information should be provided on any change in the situation of operations and orbital positions.
Summarising, it can be considered that “Article I of the Outer Space Treaty establishes the need to adopt rules of international space law to regulate the use of space (and its resources). The States may authorise the activities of their nationals." However, “this principle for the exercise of national jurisdiction does not constitute a basis for legislative jurisdiction with regard to the regulation of the legal status of outer space itself. It follows that the legal aspects of the exploitation of space resources must be regulated by international law”.
An important place in international security is the information provided on space objects at the time of registration. This contributes to achieving transparency and security in space activities.
