International Agreements and Laws Shaping Space Exploration

The resurgent interest in lunar exploration makes an urgent need for a clearer policy on the economic utilization of space. Evolving legal frameworks for space activities will soon be put to the test

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By Jerry Yao with the support of SpaceRadar and Space Ambition. This article is a condensed version of the full piece available at SpaceRadar.io

Nations are striving to maintain a balance between their national strategic interests in space and promoting peaceful international cooperation. As we stand on the verge of a new era in lunar exploration, it is crucial for NewSpace actors to comprehend the current policy landscape. This article marks the beginning of a series delving into the lunar implications of various policies, starting with an exploration of international instruments. Future articles will cover national and regional policies, completing a comprehensive understanding of the lunar regulatory environment across all policy levels.

Outer Space Treaty and Moon Treaty

As discussed in a previous article published by Space Ambition, the Outer Space Treaty (OST), drafted during the space race era and adopted in 1967, reflects the global aspiration to prevent the militarization of outer space. 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, emphasizing cooperation and preventing national appropriation of the moon and other celestial bodies. However, while a substantial number of countries (136) have signed the treaty, signatories’ rights and duties remain unclear. As it is a treaty of principles, there is still significant debate as to the meaning and interpretations of the provisions of the treaty.

Figure 1: Artist’s rendering of astronauts conducting science and exploration activities on the lunar surface. Image credit: NASA.

The Moon Treaty, conceived in 1979, takes a distinctive approach by declaring lunar resources as the common heritage of mankind. Despite noble intentions, it was not widely accepted, with major space powers such as the US, China, and Japan abstaining from ratification. Section 2 of the Executive Order dated April 6, 2020, makes the US position on this matter explicitly clear. It states that the US is not a party to the Moon Treaty and that it does not see the Treaty to be effective or necessary in guiding nations toward the promotion of commercial participation in the exploration, scientific discovery, and use of celestial bodies, claiming this to mean essentially the prohibition of private industry to develop outer space. Finally, it declares an objection to the attempt of any state or international body to treat the Treaty as customary law.

The true test of the Moon Treaty both as a 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.

Figure 2: Timeline of the development of major space policies

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. However, the US interpretation of the non-appropriation principle is clear: the OST does not ban the exploitation of space resources- rather, exploitation is a freedom guaranteed by Article I of the OST.

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 endeavors

• Peaceful Purposes: reinforces the commitment to the peaceful use of outer space, and adherence to relevant international law

To promote deconfliction in outer space activities, the Accords propose the establishment of safety zones to facilitate in situ resource utilization (ISRU) activity on the Lunar surface. These safety zones would surround a participant country’s space operations, thereby reducing the risk of another actor’s activities threatening their own. While this would theoretically 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. 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, nevertheless, set a tone of collaboration, transparency, and interoperability in lunar exploration- while not universally adopted, they represent a step towards a shared lunar future.

Synergies and Gaps

Figure 3: Overview of Current International Instruments

Promotion of Peaceful Use

The OST upholds 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), the Moon Treaty upholds and elaborates on many of the provisions of its parent.” (Michael Listner).

As for the Artemis Accords, while the specifics can be interpreted otherwise, it reaffirms the OST, emphasizing the peaceful use of outer space, and fostering 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 behavior. 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. The Moon Treaty similarly establishes international liability, ensuring accountability for any damages caused by space activities.

Emergence of the Property Rights Debate

Despite emphasizing the common heritage of lunar resources, the Moon Treaty lacks explicit guidelines on property rights for entities engaging in lunar exploration and resource utilization. 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 establishing clear guidelines to incentivize private investment and ensure equitable resource utilization. While Article I of the OST lays out an obligation to share the benefits of space to all countries, regardless of economic or scientific development, the treaty does not carry 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, including those that might come later into the space sector. 

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.

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, future international instruments need to explicitly incorporate provisions that regulate the activities of private entities.

National Responses in Brief

Intending 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, we would like to share the schematic overview of domestic space policies below as a teaser. 

Figure 4: Overview of Domestic Space Legislation

The Road Ahead

As lunar stakeholders actively shape the regulatory landscape, recent technological triumphs have played a pivotal role in minimizing 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 bring 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 behavior, there is a clear need for accessible information on the policy discourse. 

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