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.