One small step for property rights in outer space?

Last week, NASA announced a new set of principles to govern the civil exploration and use of outer space called the "Artemis Accords", which are named after its "Artemis" programme to return astronauts to the moon. It is intended that space agencies that join NASA in the Artemis programme will execute bilateral agreements reflecting the principles of the Artemis Accords. The principles cover a wide range of issues relating to space exploration, such as interoperability, deconfliction and – the focus of this article – the extraction and utilisation of resources on the Moon, Mars, and asteroids.

The Accords had been previewed earlier in May by unnamed US officials speaking to Reuters, who said that the US was pursuing a new international legal framework to allow companies to own resources that they extract in space¹. This in turn followed the earlier issue of Executive Order 13914 on 6 April 2020, which asserts the right of Americans to "engage in commercial exploration, recovery, and use of resources in outer space".

This is important because the recovery of resources in space is a keenly contested issue in international law, as we explore further below. Historically, this debate has had limited practical consequence, because the technology to extract resources in outer space has not existed. However, it may soon be taking on greater practical significance in the context of the Artemis programme, and in particular the development of "in-situ resource utilisation" (ISRU) technology.

Artemis Programme

The Artemis Programme aims to land the first woman and the next man on the Moon by 2024, with the further aim of establishing sustainable exploration of the Moon with both commercial and international partners by 2028 and, ultimately, preparing for a crewed mission to Mars². Following the landing in 2024, NASA plans to establish a sustainable presence at the lunar South Pole called the Artemis Base Camp. The astronauts stationed there will be involved in testing new technologies in six priority areas covered by NASA's recently announced Lunar Surface Innovation Initiative. One of these is ISRU technology, which will enable the production of fuel, water, and/or oxygen from local materials³. In May 2018, NASA announced the selection of 10 companies to participate in the development of ISRU technology⁴.

In the longer term, the Moon's promised riches include: (a) a wide variety of rare earth metals (REMs) which are vital to emerging technologies, and particularly significant to the US given that 90% of REMs on Earth are produced in China; (b) water, which can be used to make rocket fuel in addition to its more familiar uses; and (c) Helium-3, which has significant potential as a future energy source⁵. In the recent past, the idea of asteroid mining was driven by similar promises of rich resources in near-Earth asteroids, and there have been serious efforts to invest in such mining. The biggest names in those endeavours were Planetary Resources and Deep Space Industries, both American companies. These companies focussed on asteroid mining, but ultimately they could not maintain investor confidence in their long-term vision⁶. Both companies pivoted toward other technologies and were eventually bought up in 2018 and 2019⁷.

Artemis Accords

The Artemis Accords state that "the ability to extract and utilize resources on the Moon, Mars, and asteroids will be critical to support safe and sustainable space exploration and development". The Accords emphasise that such activities should be conducted in compliance with 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 (the "Outer Space Treaty"), and in particular Articles II, VI, and XI.

The Outer Space Treaty is the cornerstone of international law relating to activities in outer space. It has been ratified by 110 countries, including the US, and signed by an additional 23 countries⁸. Article II provides that outer space, including the Moon and other celestial bodies, is "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". Article VI provides that State parties bear responsibility for the activities of their nationals in space, and that they must authorise and supervise such activities. Article XI requires State parties to inform the UN Secretary General, the public and the international scientific community regarding their activities in outer space. The Artemis Accords therefore envisage that the utilisation of space resources will respect the fundamental principle of non-appropriation and must be appropriately authorised.

As noted above, however, the US officials who spoke to Reuters indicated that the Artemis Accords would establish a legal framework to allow companies to own resources that they extract in space. The Accords are not in fact explicit on this point. These officials also said that the Accords would propose "safety zones" around Moon bases to prevent damage or interference from other countries or companies operating nearby. This would not, according to the officials, involve claiming sovereignty over the affected areas – which as we have seen is prohibited by Article II of the Outer Space Treaty – but coordination with other space actors. By contrast to property rights, this concept of safety zones does appear in the Accords.

Executive Order 13914

Although the Artemis Accords are not explicit about property rights, what the US officials said to Reuters is consistent with US policy on this point, which was recently expressed in EO 13914. EO 13914 refers to President Trump's Space Policy Directive 1, which amends former President Obama's National Space Policy to include "the return of humans to the Moon for long-term exploration and utilization", which importantly will involve commercial as well as international partners. The EO itself reiterates the importance of the role of commercial partners in recovering and using outer space resources in service of long-term exploration and scientific discovery. In so doing, it further reinforces the policy conveyed by the US Space Resource Exploration and Utilization Act of 2015 (Title V of  the US Commercial Space Launch Competitiveness Act of 2015). This requires the President to facilitate the commercial recovery of space resources by US citizens and affirms that US citizens are entitled to any space resources they obtain through commercial recovery.

This is important from the US perspective because of the uncertainty around this issue in international law – which the EO says has discouraged some commercial entities from becoming involved in commercial recovery of space resources.

International Law

The key instruments of international law relating to the recovery of outer space resources are the Outer Space Treaty, and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement"). As noted above, the Outer Space Treaty has been widely ratified. By contrast, the Moon Agreement has been ratified by only 18 countries and signed by an additional four – not including the US⁹. This is significant because the issue of space resource utilisation is much less clearly addressed in the Outer Space Treaty than in the Moon Agreement, and it arguably places fewer limitations on what State parties can do.

EO 13914 is explicit in its rejection of the Moon Agreement and claims it has led to uncertainty regarding the recovery of space resources. The issue here is (mainly) Article 11 of the Moon Agreement, which states that the Moon and its natural resources are the "common heritage of mankind", and that the Moon's resources cannot become the property of, inter alia, any State, non-governmental entity or natural person. That said, Article 11 does also provide for the establishment of an international regime to "govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible". This regime would cover the orderly and safe development of the resources, their rational management, the expansion of opportunities to use them and an "equitable" (but not equal) sharing of the benefits from those resources by all State parties.

The concept of the "common heritage of mankind" is a contentious one. It involves the idea that "certain areas lying outside of national jurisdiction, for reasons of the scientific and commercial value of the resources contained therein, shall be commonly managed by all states on behalf of mankind" and "cannot be appropriated by a single state or private person"¹⁰. The same concept was deployed in relation to the deep sea bed under the 1982 United Nations Convention on the Law of the Sea, which was concluded around the same time as the Moon Agreement.

The US objects to the idea of the Moon as the common heritage of mankind because it implies a common management of the Moon's resources. In December 2017, the Executive Secretary of the US National Space Council, Scott Pace, remarked that outer space is not the common heritage of mankind and said of the Moon Agreement that he "found it astounding that representatives of our government would even consider an agreement that would subordinate U.S. private sector activities on the moon to an unelected international authority"¹¹.

As noted above, Article II of the Outer Space Treaty provides that the Moon is not subject to national appropriation by any means. This principle is restated in the Moon Agreement, but unlike the Moon Agreement, the Outer Space Treaty does not go on to make an explicit assertion about property rights. This has given rise to a debate over whether this principle of non-appropriation translates into a prohibition on property rights.

On one side are those who claim that Article II applies to outer space but not to the natural resources within it, and there are no restrictions on commercial recovery of natural resources. There are also arguments that the prohibition on appropriation applies to States, as parties to the Outer Space Treaty, but not private entities and individuals; and that a prohibition would be incompatible with the right to freely use and explore space, which is established by Article 1 of the Outer Space Treaty¹².

On the other side are those who claim that Article II applies both to outer space and the natural resources within it, since the Treaty itself makes no distinction between them. In addition, as noted above, Article VI of the Treaty requires that State parties bear responsibility for the activities of their nationals in space, and that they must authorise and supervise such activities. However, since State parties are themselves prohibited from appropriating outer space by any means, it is questionable whether a State would have the jurisdiction to authorise one of its nationals to engage in the commercial recovery of space resources – or could validate a claim to private property in such resources¹³.

Aside from these questions around interpretation of the Outer Space Treaty, there is also a question whether agreements signed under the Artemis Accords could provide a sufficient foundation for a property regime that private companies can rely on. The express intention is to sign bilateral agreements between NASA and the space agencies of international partners in the context of the Artemis programme. Since this appears to be a bilateral rather than a multilateral framework, it raises the question of how property rights might be recognised between the international partners, if there are not also separate agreements between them; and, depending on how many partners are involved, whether the system could have a sufficiently broad base to provide comfort to companies.

Building Blocks

As noted above, the Artemis Accords are not explicit about property rights, and so it is not clear yet exactly what the US has in mind in this regard. One possible source of ideas is the "Building Blocks for the Development of an International Framework on Space Resource Activities", which was adopted by the Hague International Space Resources Governance Working Group in November 2019¹⁴. The 35 members of the Working Group are major stakeholders from government, industry, universities, civil society and research centres. The Working Group was established in 2016 to lay the groundwork for a governance framework for space resource activities.

Section 8.1 of the Building Blocks provides that the international framework should ensure that rights over extracted space resources, as well as products derived from them, can lawfully be acquired through domestic legislation, bilateral agreements and/or multilateral agreements. According to the accompanying Commentary¹⁵ on the Building Blocks, the key legal basis for section 8.1 is the freedom for all States to "use" space granted by Article I of the Outer Space Treaty. At the same time, section 8.3 of the Building Blocks reiterates the principle of non-appropriation under Article II of the Outer Space Treaty.

Next Steps

Mike Gold, NASA Associate Administrator for International and Interagency Relations, said last week in a press briefing that US government approval has only recently been given to commence negotiation of bilateral agreements under the Artemis Accords, and no formal conversations have yet begun¹⁶. Current international partners in the Artemis programme, who will presumably be approached for discussions, include Canada, Japan, Australia and the European Space Agency, among others.

According to the US officials who spoke to Reuters, Russia will not be included among the early partners, because of certain satellite manoeuvres by Russia that the US perceives as threatening. In response, Dmitry Peskov, the Presidential Press Secretary, said that the Russian government was aware of the Artemis Accords, and that they would need "thorough analysis…from the existing international law standpoint"¹⁷. Mr Peskov had earlier reacted to EO 13914 by stating that any attempts at "privatising" outer space are unacceptable, although he did not go so far as to say that EO 13914 itself represented such an attempt¹⁸.

However, Mr Gold struck a more optimistic tone in the press briefing. He said it was unfortunate that there had been "a lot of media leaks that didn't properly describe what the Artemis Accords were" and that he was not surprised by Russia's reaction. He expressed his hope that now that the Accords had been publicised, Russia would be able to take a "hard look" at them. He noted that Russia is already talking to NASA about participation in the Lunar Gateway programme, a space station to be put into lunar orbit. Notably, this programme is not part of Artemis, but falls under the auspices of the Intergovernmental Agreement that governs the International Space Station, to which Russia is a signatory¹⁹.

 It will be interesting to see how the bilateral agreements with NASA's partners under the Artemis Accords take shape, and whether this initiative can generate enough support from other countries to potentially form the basis of a property regime that commercial operators feel they can rely on. And no doubt this would take time. But in the meantime it is indicative of the pressure that is now beginning to build to resolve the debate over property rights, one way or another.