PART 1
Introduction
The tremendous growth in space technology has intensified the lunar race among the space faring states. The near precise landing of Japan’s Smart Lander for Investigating Moon (SLIM) close to the Moon’s equator and its unexpected survival of lunar night has not only been a historic mission of JAXA but has also kickstarted the lunar explorations of 2024. Further, the recent touchdown on the lunar surface by Intuitive Machines’ Odysseus marks a great leap in the participation of private sector in space exploration. Along with such developments come a plethora of legal issues relating to space exploration especially on the lunar surface. This boom in space exploration poses immense challenges to the legal regime for outer space.
The Corpus Juris Spatialis primarily consists of five treaties or agreements, (i) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies – The Outer Space Treaty (“OST”), (ii) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement) , (iii ) Convention on International Liability for Damage Caused by Space Objects (The Liability Convention) , (iv) Convention on Registration of Objects Launched into Outer Space (Registration Convention) and (v) The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”). The Outer Space Treaty however is the understructure on which the space law regime is built upon, with 114 states being parties to it. On the other hand, the Moon Agreement enjoys the least support with seventeen parties, with a large number of space faring states keeping it at an arm’s length.
Against this backdrop we have the Artemis Accords, an apparently disruptive move by the United States of America (hereinafter “US”) to establish non-binding principles, guidelines and best practices that govern the exploration and use of outer space with the intention of advancing the Artemis Program. Artemis is the United States’ ambitious lunar exploration programme through which NASA anticipates the landing of the first woman and the first person of color on the Moon apart from the construction of a base camp on the surface of the Moon and a gateway in the lunar orbit.
The US claims that the Artemis accords do not violate the outer space legal regime and are in compliance with the same. However, it conveniently neglects the Moon Agreement as part of outer space legal regime. Thus, it is imperative to appraise the general compliance of the Accords with the OST and their relation with the Moon Agreement as it could lead to fragmentation in the development of international space law, curtailing the multilateral regime for the governance of Global Commons. Further, it is also critical to analyze the position of India as an emerging space power and a developing nation which has acceded to the Accords.
India has seen considerable growth in research and development in the outer space domain and has been attracting investments in the space sector for some time now. This breaks the early notions of existence and dominance of merely two space super powers in the space domain. The rise of India, on the international domain should not be viewed in isolation and should examine the benefits and the bargaining leverage it could offer to the developing world or the global south as such.
Artemis Accords and the Silence of the Outer Space Treaty
The United States is not a Party to the Moon Agreement and has formally rejected it through its executive order that vehemently objects any attempt to treat the Moon Agreement as reflecting customary international law. The order also declares the Moon Agreement as a redundant instrument that is ‘not necessary’ with regard to the exploration and use of space. Additionally, the order also states that the US ratified OST is uncertain on the aspects of commercial exploitation of space and space resources. This, according to the US, led to the introduction of Artemis Accords which claim to establish best practices and principles for the exploration of the Moon and other celestial bodies, while preserving the US interests. Unlike the Moon Agreement, which is rooted in the principle of Common Heritage of Mankind, the OST is ambiguous in its language. It uses phrases like ‘benefit and interests of all countries’ and ‘province of all mankind’ which are vague and in the widest sense could even sit well with the concept of Global Commons. Such indeterminacy and lack of precision of treaty obligations open room for attempts at political manipulation ( Alexander Orakhelashvili). In essence, the US by dismissing the Moon Agreement, is trying to build customary international law in its favor in an attempt to interpret the ‘uncertainties’ in the OST through its Artemis Accords in the disguise of mere political commitment.
PART 2
Tension between the Outer Space Treaty and the Artemis Accords
The primary bone of contention is the principle of Common Heritage of Mankind (CHM) and equitable sharing of resources which the US objects and claims as not being envisioned by the OST, as it is silent on the commercial exploitation of lunar resources. The OST also prohibits the appropriation of moon and other celestial bodies by the claim of sovereignty. A cursory reading of Sections 9, 10 and 11 of the Artemis Accords posits the inconsistencies with the OST. The preservation of space heritage, extraction of resources and establishment of safety zones that the Accords assert do not inherently stem from the OST and need to be deeply examined.
Manufacturing Customary International Law (CIL)
Generally, a treaty is interpreted in good faith and with ordinary meaning in light of its object and purpose. However, together with the context, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions or any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation need to be taken into account to arrive at a conclusion (Art.31 VCLT). The Accords could be construed as a subsequent agreement and/or a practice which has enabled a US dominated interpretation of the OST that neglects the principle of CHM as opposed to the Moon Agreement. When there are no binding obligations with regards to the commercial extraction and exploitation of space minerals, such a ‘political commitment’ would favor the development of the CIL.
State practice and opinio juris are the meta-rules for the creation of CIL (Kammerhofer). The signing of the Accords is essentially an act of the executive and state practice includes executive actions. The binding aspect (opinio juris) is the psychological element that emanates from the free will of states accepted as principles through usage or through expression in conventions so as to regulate relationship among each other (Lotus case). Although, the Accords deem themselves as non-binding they are enabling the psychological element and it is evident as they have been receiving huge support from a number of spacefaring and non-spacefaring states equally. This tacit arrangement could bring to life a rule of CIL which favors the US centric interpretation of the OST on commercial exploitation and extraction of space resources.
Emergence of ‘Instant’ Custom in International law
Although traditionally both the corpus and the animus are considered constitutive elements of a custom to emerge, the possibility of an alternative view was not left unexplored. The psychological element (opinio juris) could manifest through acceptance, recognition or acquiescence by a state. In that case the binding force of the rule not only rests on consent but also on the principle of estoppel. Thus, an emergence of an ‘instant’ custom is plausible. From this point of view, there is no reason as to why a custom in international law may not develop over a short period of time (Bin Cheng). But on the other hand, the extent of operability of the estoppel hasn’t been explored on a great scale. A formal application of this premise, could make Artemis Accords CIL if the existing ‘partners’ of the United States ‘positivize’ their new common opinio juris.
India’s quandary
As the first state to land on the Moon’s south pole, India has secured its much-deserved seat in the club of spacefaring nations. Being an emerging space power, India has been expanding its space sector through its FDI policy and National Space Policies with a keen eye for commercialization of space sector.
As a signatory to the Moon Agreement, India must refrain from acts that defeat the object and purpose of the treaty (Art.18 VCLT). Although, India has joined the Artemis Accords, it is yet to clarify its position with respect to the Moon Agreement. India’s clarification could bring a significant rearrangement of relationships in the framework as the consistency aspect between the Moon Agreement and Artemis is disputed. For instance, Saudi Arabia upon signing the Artemis has withdrawn from the Moon Agreement without stating any reasons and Australia which is a Party to both the Moon Agreement and the Artemis has maintained that its actions are in consonance with the Moon Agreement and its international obligations. Such action of states can only be justified if it facilitates multilateral approach to the outer space regime where the interests of all states are taken into consideration, rather than a fragmented and single state dominated development.
It is high time that India understood its dual position, as an emerging space power and as a developing nation among the cream of developed space faring nations. This gives India a leverage to negotiate for the rest of the developing world especially the non-space faring nations. Thus, India should seek to resolve its quandary by ratifying the Moon Agreement and spearheading a regime for the commercialization of space with due consideration for the rights of developing world and non-spacefaring nations.
India should ensure in emphasizing ‘equitable sharing of benefits’ and ‘international co-operation’ as envisaged by the Moon Agreement and tap on the potential of the Agreement which has been much ahead of its time in establishing an International Regime to govern the exploitation of the natural resources of the Moon, but had deferred the operation considering the feasibility. An international regime like the International Seabed Authority could be conceived to balance the commercial interests of spacefaring states and non-state actors while affirming the principle of CHM so as to ensure sustainability.
India can resort to Article 17 of the Moon Agreement and propose an amendment and lobby for a developing world centric multilateral framework rather than accepting a US dominated regime. Thus, it is India’s turn to make a case for the developing world, which largely consists of emerging space powers and non-space faring nations in the 67th Committee on the Peaceful Uses of Outer Space (COPUOS), which has largely remained the fortress of US, Russia or off-late China.
Author
Jayamani Kalyanasundaram is a Graduate student pursuing Master of laws in International law from South Asian University, New Delhi. Her research interests cut across various spheres of international law particularly international space law, international human rights law and TWAIL.
