Private companies in the United States whose actions are authorized by government licensing agencies will have a profound effect on the meaning and application of space law through the doctrine of “subsequent state practice.” The strong influence of the United States (and its international partners) on space law will also be seen as NASA’s Artemis program proceeds.
The global space economy is expanding at a rate not seen since the Apollo era and could see revenues of over US$1 trillion by 2030. Adding to the traditional satellite services (telecommunications, navigation, and remote sensing), entirely new sectors are emerging in the space industry, such as space tourism, internet megaconstellations, on-orbit satellite servicing and refueling, debris removal, resource extraction, space-based solar energy collection, private space station construction, and transportation services (including suborbital, orbital, and lunar). At the same time, the world space powers are returning to the Moon en masse, primarily through NASA’s Artemis program which will be conducted in accordance with the Artemis Accords, a set of non-binding principles to ensure safe lunar operations in compliance with international law. China and Russia are pursuing the same goals through the construction of the International Lunar Research Center at the lunar south pole, a partnership that now includes the United Arab Emirates, South Africa, Venezuela, and Pakistan.
The rapid growth of the space industry, spurred by both commercial industry and government policy, is raising new questions about the interpretation and application of the existing rules governing space activity, most notably, those principles contained in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty or OST). For example, while the Outer Space Treaty clearly prohibits national appropriation of a celestial body, it is silent on the legalities surrounding resource extraction, thus leaving operators unsure about their ability to protect their investment in this sector. In another example, there is uncertainty regarding the meaning of the OST provision requiring states to operate “with due regard to the corresponding interests” of other states. Does this result in a first-come priority system for the establishment of mining claims (since late-comers would be required to exercise due regard by avoiding interference with such claims)? Others might ask whether the obligation to act with “due regard” requires the equitable sharing of limited natural resources. The need to resolve these issues has been highlighted by the successful Indian Chandryaan-3 mission, which is one of many imminent missions to the Moon to prospect for water.
Answering these questions is not easy. While the UN Committee on the Peaceful Uses of Outer Space is engaged in multiple valuable initiatives to develop the law and produce legal clarity, binding instruments that could clarify or elaborate upon existing law have been impossible to draft due to political differences, while the resolutions, best practices, and guidelines that the UN has managed to create, no matter how commendable in substance, are non-binding.
But despite the absence of new treaties, space law will continue to evolve in other, less obvious, ways, such as in reaction to “subsequent state practice” pursuant to Article 31 of the Vienna Convention on the Law of Treaties:
There shall be taken into account [when interpreting a treaty term] . . . [a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
With state practice being a guiding light in the interpretation of international law, the United States (together with its Artemis partners) will exert great influence on the future shape of space law as these states undertake, procure, or authorise dozens of lunar missions in the coming years – and in the process will establish new customs and best practices that will operationalise the black-letter law.
But what impact in particular will the actions of private operators, such as SpaceX and Blue Origin, have on international law? One would be correct in arguing that private actions do not constitute “state practice.” However, governmental consumption of the services provided by private companies, as well as the licensing and supervision of these activities, constitutes overt state practice. It is through these state actions that the United States (by way of private activity) will make a powerful impact on the shape of space law in the coming years. Imagine, for example, the Federal Aviation Administration grants SpaceX a so-called “operator license” for launching a Starship that will land on the Moon and then deploy a swarm of 1000 miniature rovers with nuclear power sources across the lunar south pole in a search for water. This would signal that the US government does not see such activity as a violation of the obligation to operate with due regard and could be used as evidence in support of such an interpretation.
Some see the predominance of US activity in space as a threat to international order. In their recent book Who Owns Outer Space? (Cambridge), Professors Michael Byers and Aaron Boley disagree with the Accords’ approach to guiding civil space exploration:
One thing is certain. In the absence of a multilateral process for governing Space mining, the approach taken by the United States risks the development of different, inconsistent and perhaps even conflicting rules and practices. This could, in turn, destabilise the entire existing Space governance regime, to the long-term detriment of international peace and security. By marginalising input from developing and non-spacefaring states, it could also replicate, perpetuate and even exaggerate current economic and political inequities as humanity moves into Space.
These fears, however, are unfounded. The Artemis Accords promote reasonable norms of behavior where none had existed before. The Accords encourage its signatories to abide by existing law, and then take reasonable incremental steps to help facilitate the operation of existing law. More importantly, the Accords were the product of lengthy international discussions to ensure there would be broad support for the final language. Since the proof is in the joining of the accords, the level of international support for the Artemis Accords is impressive: 29 states have acceded, in addition to the Isle of Man, in less than three years.
That said, the Artemis Accords cannot be characterised as a perfectly balanced multilateral project due to one stark omission – the exclusion of China. Through no fault of NASA, this distancing from China is the result of an act of Congress, the Wolf Amendment, which prohibits NASA from spending money to cooperate with China without Federal Bureau of Investigation involvement or approval of Congress. Establishing standards without the collaboration of China, a major spacefaring country, could create divisions in lunar operations and disputes over how international treaties are applied in lunar development.
The legal world is faced with a precarious balancing act between innovation and reasonable regulation; each ideal must sacrifice to keep the balance. Recent news of India’s Chandrayaan-3 on the lunar south pole was a reminder of the coming challenges in space law. There is no pause on private advancements in space. While there are many paths forward to achieve the equitable use of outer space, most will agree that cooperation and collaboration is the key to long-lasting peace. The most universal solutions will require the continued meaningful collaboration of all countries (whether major powers or emerging spacefaring countries), civil society, academics, and, all operators, whether public or private.
Caylan E. Fazio is a J.D. candidate at Cleveland State University College of Law and a member of the Global Space Law Center Research Council.
This article is published under a Creative Commons License and may be republished with attribution.