Does International Space Law Permit the Prioritisation of Scientific Resource Activities in Outer Space?

[Güneş Ünüvar is a Senior Researcher at the Luxembourg Centre for European Law (LCEL), University of Luxembourg]

Introduction

The renewed interest in lunar exploration has intensified the competition between scientific research and commercial activities, particularly in regions like the Moon’s south pole. This area is of significant interest due to its potential water ice deposits, which are valuable for both scientific study and as resources for future missions. The Moon’s south pole presents unique challenges due to its limited number of sites that are both scientifically valuable and commercially viable. These sites are often small and geographically concentrated, leading to potential crowding and interference among various actors with differing objectives. Without proactive measures to manage these competing interests, there is a risk that both scientific and commercial missions could be compromised. 

The ongoing discussions at the United Nations Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”), particularly through its Working Group on the Legal Aspects of Space Resource Activities (the “Working Group”), represent a critical juncture in the development of soft law norms for the governance of space resource activities. The Initial draft set of recommended principles for space resource activities, disseminated to the Working Group for its consideration, was recently discussed during the 64^th session of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) Legal Subcommittee (LSC). At the heart of this debate lies a fundamental legal and interpretative question: can scientific activities be prioritised over other types of activities, such as commercial ones, under the framework of the 1967 Outer Space Treaty (OST)?

This post examines the abovementioned draft principles, especially the language of its Principle 6, which suggests that scientific activities should be prioritised in the context of space resource activities. It explores whether such a prioritisation is compatible with the OST, considering diverging interpretations; notably between states endorsing an inferred meaning that such prioritisation is embedded within the OST, and those advocating for a more conservative reading of the OST, arguing that no express language attaches priority to scientific activities vis-à-vis non-scientific (e.g. commercial) resource activities. The post evaluates the legal foundations for prioritisation, the interpretive limits (and prospects) of the OST, and the implications for the emerging normative framework on space resources.

Positioning Scientific Activities within the OST

The draft principles begin with the reaffirmation that space resources activities must be conducted in accordance with international law, particularly the OST (proposed Principle 1). This is both expected and essential, building upon the foundations laid forth by Article 3 of the OST. Furthermore, Article I of the OST provides that outer space, including the Moon and other celestial bodies, shall be “free for exploration and use by all States” and that such exploration and use “shall be carried out for the benefit and in the interests of all countries.” It further states that outer space “shall be the province of all mankind” and specifically mentions that states “shall facilitate and encourage international cooperation in scientific investigation.” Its preamble declares that the parties of the OST desire “to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes”.

Despite the ongoing and highly contentious nature of the law and policy-making efforts in outer space in general, the OST remains the foundational legal instrument governing activities in outer space, commanding broad international support.

However, affirming the OST as a legal baseline raises the stakes for interpretative consistency. Any normative addition, even in the form of soft law, must not contradict the language or spirit of the OST. Accordingly, the assertion in the draft principles that scientific activities should be prioritised raises a legal and conceptual issue: does the OST support (or allow) for such prioritisation?

The draft Principle 6, in its current form, notes that “In developing, planning and conducting space resource activities, States shall give priority to: (a) scientific research and investigation missions that [aim to give rise to benefits and] promote the interests of all humankind, and (b) space resource activities that support such missions.” In its Part 2, the draft principles also foresee several “possible additional principles” under Principle 6, which read “protect [specific] areas that may have special scientific, environmental, historical, or cultural heritage interest or special significance for indigenous peoples”, and “avoid depletion of space resources located at an area on the Moon or other celestial bodies, or the destruction of a celestial body in which space resources are located.”

While the OST clearly emphasises the importance of scientific cooperation and investigation, it does not, in a strict legal sense, elevate scientific activities above other permissible activities. Nor does it specify a hierarchy of uses between different activities. It could also be argued that an explicit mention of science does not necessarily imply that other activities are lesser or subordinate, particularly given the evolving technological and commercial landscape that was not foreseeable in the 1960s.

Thus, while scientific activities are mentioned (arguably even encouraged) in the OST, inferring a legal priority or primacy from the text of the OST is not a given. However, the absence of such explicit prioritisation does not preclude the possibility of subsequent agreements or interpretative instruments clarifying or endorsing a practical hierarchy of uses, provided there is political will among states. Nor does it supersede the fact that the OST repeatedly emphasises the importance of international cooperation in conducting scientific activities. A similar ‘gray zone’ exists with regard to the question of whether space resource extraction and utilisation per se would be contrary to the non-appropriation principle enshrined under Article II of the OST. Given the broad wording of the OST itself, fundamental interpretative divergence among stakeholders is a common occurrence. The tendency has been to supplement and specify this broad language through soft law instruments or national law to give context and direction to the overarching principles contained within this key legal instrument.

Rejecting and Embracing Prioritisation of Scientific Resource Activities

One position reflects a rejection of the proposed prioritisation language. It calls for an emphasis on the “importance” of scientific activities without asserting their legal or operational superiority. This follows that enhanced cooperation in conducting scientific endeavours would be highlighted, but the idea that science should displace other types of legitimate activities, including commercial activities, is not corollary to this position.

This view appears to align with initiatives such as the Artemis Accords. While the Accords do not expressly reject the prioritisation of scientific activities over other types of operations, it does not endorse such prioritisation explicitly either. As such, the Accords signatories do not readily accept that scientific activities take precedence over other uses. Instead, they stress the peaceful use of space, transparency, interoperability, emergency assistance, and the sustainable utilisation of resources. Under Section 10, the Accords state that resource extraction does not constitute national appropriation under Article II of the OST and that such activities must be conducted in accordance with the OST. Such extraction can be conducted for scientific purposes, but it also opens way for commercial uses.

During the preparation of the draft principles, multiple states expressed views stipulating that scientific activities should be emphasised and safeguarded at varying degrees (for instance, the consultation submissions by Austria, France, Indonesia, and Russia among others). Subsequently, during the Working Group meetings in May 2025, some states adopted more decisive positions. The crux of the argument was that the prioritisation of scientific activities was consistent with the OST precisely because scientific activities were expressly mentioned, whereas commercial activities were not. According to this reasoning, the absence of reference to commercial endeavours implies a subordinate status for such activities under the treaty vis-à-vis those that are expressly articulated.

This a noteworthy position, but it faces challenges and pushback. The silence of the OST on commercial activities likely reflects the historical context of its drafting more than a deliberate intent to exclude or subordinate them to scientific activities. In the 1960s, commercial space activities were either non-existent or highly speculative. The OST was crafted in an era dominated by state actors, primarily the United States and the USSR, engaged in Cold War space exploration. While the OST clearly attaches a particular importance to scientific exploration, according to the proponents of the idea that prioritisation should be rejected, the absence of commercial references is better understood as a reflection of the realities of that time rather than a proactive decision to prioritise science over commerce.

Asymmetric Interpretations

A central concern emerging from these divergent views is the potential inconsistency in how states interpret the broad language contained in the OST more generally. As mentioned above, one salient comparison is resource extraction and utilisation on the one hand, and the prioritisation of scientific activities on the other. The Artemis Accords notably interpret the OST as allowing resource extraction in a way that does not amount to national appropriation, despite the absence of a clear language directly supporting this reading. Extending an OST interpretation to accommodate the prioritisation of scientific activities despite the comparably ambiguous legal framework is, similarly, boils down to an interpretative preference.

This could lead to accusations of selective interpretation. If one is willing to adopt an expansive view of what the OST permits regarding resource use (e.g., allowing non-appropriative commercial exploitation), then rejecting the interpretive expansion of scientific prioritisation may appear inconsistent. Conversely, asserting a strict, originalist reading of the OST while opposing commercial activities altogether may also appear one-sided. The primary risk here is the potential fragmentation of norms, where soft law initiatives, like the draft principles, become contested arenas for broader geopolitical and economic interests, undermining multilateral consensus essential to UNCOPUOS’ work.

A Middle Ground: Emphasizing Cooperation and Benefit

A potential compromise could lie in reframing the prioritisation language into a cooperative obligation. Rather than asserting a formal and clear-cut hierarchy of activity types, the principles could emphasise that scientific activities must be facilitated, supported, and conducted in a cooperative and beneficial manner, in line with Article I of the OST. Another alternative could be to adapt the possible additional principles prescribed under Part 2 to emphasise the situations where scientific activities would take precedence over purely commercial activities in areas unique or otherwise highly valuable for scientific activities to mitigate concerns over their destruction. Such an approach would uphold the spirit of the treaty, which aligns with emphasizing the importance and benefit of science, without imposing a rigid out-of-context prioritisation.

The draft principles should also address the issue of commercial actors conducting scientific activities. It would be inaccurate to claim all activities conducted by commercial entities will be exploitative in nature. The principles could also elaborate on how, or whether, a scientific activity conducted by a private entity would compare to, for example, a public entity conducting a similar operation.

The debate over prioritising scientific activities in outer space is more than a legal or semantic question: it reflects broader tensions in international space law and policy. These include the balance between public and private interests, the challenge of interpreting mid-20th-century treaties in the 21st century, and the need for inclusive, forward-looking norms that reflect the diversity of actors, missions, and complex networks now operating in space.

While the OST remains the unequivocal foundational framework for space law, it bears interpretative burdens its drafters never anticipated. As treaties must evolve, this is not inherently problematic. However, this evolution must be guided by constructive and conciliatory dialogue – often dubbed the “Vienna spirit” by the delegates of UNCOPUOS. As the Working Group continues its work through 2027, cooperation and peaceful, accessible nature of space for all should remain fundamental guiding principles.