AuthorAganaba, Timiebi


One of the current and future issues in global space governance is whether it is legally feasible to have an enforcement of transactional rights to space resources. This matters because of the stated goal of various actors to find and use resources in space to further their mission, known as in situ resource use (ISRU). (1) There is an interesting question on whether there is a distinction between the use of these resources for ISRU for the furtherance of space exploration (scientific missions) or for commercial exploitation more broadly. As highlighted by Anderson et al.,

Using space resources in space increases the longevity and decreases the cost of space exploration... . [S]pace mining will likely begin with the extraction of water from the moon and accessible [Near-Earth Asteroids]. Hydrogen can be extracted from water to be used for jet fuel. Water can also be used for drinking and food production as well as providing protection from radiation. (2) In essence then, the first use case may be extraction of water in support of human space exploration, a mission of national space agencies. These agencies, however, could contract for the provision of these services to private actors. Based on the terrestrial experience as laid down by Anderson et al., (3) "[a]n international mining company will consider the following key issues when determining whether to proceed with a mining project," the first one being: "[s]ecurity of tenure: Can the mining company secure the legal right to explore for and develop the mineral properties?" (4) Secondly, as at least fourteen national space agencies have identified ISRU as a needed capability for long-duration missions, (5) it is apt to remember that self-interest in securing access to natural resources is at the root of many terrestrial disputes. According to former UN Secretary-General Ban Ki-moon, "since 1990, at least 18 violent conflicts have been fueled by the exploitation of natural resources such as timber, minerals, oil and gas. Sometimes this is caused by environmental damage and the marginalization of local populations who fail to benefit economically from natural resource exploitation." (6) Without legal clarity and certainty, one cannot disregard the possibility that as well as stifling the development of a new in-space economy, future conflict or rivalry could arise due to the competition for these resources. De Man highlights that the following conditions act as complicating factors:

the applicable multilateral treaties (a) have been concluded a long time ago; (b) contain general and ambiguously phrased provisions that require subsequent agreement and practice for their clarification; (c) concern pioneering activities performed by or under control and supervision of a limited number of States; and (d) provide no apparent incentive among governments to pursue further action at the multilateral level. (7) In terms of general international law, there are two things to note here about what De Man argues:

First: that the age of a treaty doesn't necessarily impact its applicability (8)--plenty of far older treaties are interpreted today (like the Universal Postal Union, whose treaty enables us to send our mail!). (9) In fact, in the grand scheme of things, fifty-four years isn't old at all!

Second: De Man points out that the treaty is ambiguous. (10) The issue then boils down to one of treaty interpretation, to which the Vienna Convention on the Law of Treaties (VCLT) speaks. (11) The legal standards and rules for treaty interpretation are set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. (12) This piece of international law states that as well as taking into account subsequent agreement, practice and meaning, "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (13) Also, "[r]ecourse may [also] be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion," in essence, the historical record. (14)

So, the VCLT provides for ambiguity--that's exactly when we have to pull out the history, rather than reinvent the wheel and define the provision ourselves. According to Benedict Abrahamson Chigara, though, "[s]ources of law should not end up as only technical lawyering mechanisms. Rather, they should chiefly be practical tools for enhancing states' mutual conduct in pursuit of particular outcomes." (15) As such, it is arguable that "[t]reaty law ought to allow the correction of any imperfections that become apparent in a treaty regime," through subsequent state practice. (16) In essence, "treaty texts begin, but do not end, the process of lawmaking." (17) Doctrine says we look to history, but also to look to subsequent practice. So, what do we do when they contradict?

The Artemis Lunar Exploration Program, led by the National Aeronautics and Space Administration (NASA), aims to land the first woman and the next man on the Moon by 2024. (18) NASA sees Artemis as key to the success of its "Moon to Mars exploration approach." (19) According to NASA, the Artemis program seeks to pave the way for a "new and sustainable lunar economy--"therefore commercial exploitation is foreseeable. (20) The U.S. National Space Policy released on December 9, 2020, clearly states that "[t]he United States will pursue the extraction and utilization of space resources in compliance with applicable law, recognizing those resources as critical for sustainable exploration, scientific discovery, and commercial operations." (21) The policy also highlights that "[a]s established in international law, 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." (22) With this statement, Article II of the Outer Space Treaty (OST), (23) the perhaps erroneously so-called "'constitution' of outer space," (24) is cited; and this reference makes clear that it aims to apply, rather than complete, the international space treaty framework. (25) However, it is not internationally accepted that the United States' assertion of its right to pursue space resources is in fact a legitimate legal right or in compliance with that provision of the OST. (26)

But is the United States acting in good faith by acting unilaterally? Is it even possible to truly do so in the context of a domain that has "erga omnes" obligations? There is no common understanding or ordinary meaning to space benefit and appropriation (27) and the dependence of legal interpretation on legal standards is relatively limited and superficial. (28) As Greenberg argues, it is impossible to address the job of legal interpretation--"without addressing the central jurisprudential question of how the content of the law is determined." (29) This of course depends on who gets asked or gets a say.

As Durkee highlights, taking a critical approach to international law that observes treaty interpretation as a value-laden one, it is important to care about "the process of interpretation in order to understand who is included in and excluded from the process of developing meaning" because "[u]nderstanding the process of interpretation is one way to excavate the levers of power." (30) The important question therefore to ask is "[h]ow do contests for meaning take place?" (31) What levers of influence do non state actors use in the process and what difference does all of this make for the determination of the law? (32)

This Article shows one example of the trend that advanced spacefaring States, pushed by their commercial representatives, are increasingly resorting to the adoption of domestic legislation that implements their international obligations according to an interpretation that best serves their own interests. The argument is that that approach accomplishes the goal of stimulating the space economy quicker and more efficiently than protracted multilateral negotiation processes that are cumbersome and unpredictable. The United States, in particular, has taken an expansive approach using multiple instruments and techniques, from actions taken by Congress, to the Executive branch, bilateral agreements at the agency level to innovations in contracting, with the objective of ensuring its own certainty about its interpretation of international law and to sell its vision to and influence the international community. (33) This matters because Article 31(3)(b) VCLT stipulates that there shall be taken into account, in addition to and together with other elements, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation." (34) This subsequent practice is important because it is not clear that any of the methods of treaty interpretation speak to the immediate issue at hand, however it is arguable that current practices are not that significant as "subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation", or as state practice and evidence of opinion juris for the purposes of customary international law.

Despite these significant unilateral approaches, we must conclude that there is an important role for international law to backstop, strengthen, and compel domestic law and institutions to have the common interest in the foreground. (35) This would ideally lead to a proliferation of national regimes that serve humankind as a whole, and eventually an international regime that solidifies the best practices from the implementation of those national practices.

This Article proposes that space law and governance must be looked at from a systems perspective. There are dynamics at every level of the space governance system, which comprise looking at...

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