08 Nov Can National Laws on Space Resources Serve as Evidence of Customary International Law?
[Güneş Ünüvar is a Senior Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.]
This post briefly explores the peculiar interaction between international and national legal frameworks in the field of outer space resource extraction. This interaction generally follows three steps: First, international law provides a series of guiding principles. Then, these international law rules, often vague, are concretized under national laws following specific interpretations. Subsequently, a re-internationalization process kicks in to legitimize the nationally adopted interpretations. This post ultimately argues that in this process of re-internationalization, the creation or ascertainment of customary international law rules could also play a significant role.
Can We Mine in Space? Probably
In space law scholarship, resource extraction is very popular. Space offers many things – among them, what appears to be an endless, untapped reserve of natural resources. Even though our capabilities of reaching out and extracting them are thus far minimal, states and non-state actors have taken unprecedented steps to realize this exciting goal. The issue is evidently pertinent, as copious scholarship addressing the prospect of resource extraction in space already exists (see here, here, here, here, and here). In particular, the so-called “disingenuous” tendencies of certain space-faring nations effectively bypassing multilateral attempts to establish a legal and political framework are noteworthy.
The Outer Space Treaty of 1967, hailed as the Magna Carta of international space law, bans what it calls ‘national appropriation’ by claim of sovereignty, through use or occupation, or by any other means (Art. II). This rule coexists with another equally fundamental rule, which guarantees “the exploration and use of outer space … for the benefit and in the interests of all countries”. It refers to outer space and celestial bodies as “the province of all mankind” (Art. I). Art. III is also relevant. It notes that “Parties to the Treaty shall carry on activities in the exploration and use of outer space … in accordance with international law … in the interest of maintaining international peace and security and promoting international co-operation and understanding.”
Between the first two rules under Arts. I and II, which do not specify the scope of the ‘use’ or the ‘appropriation’ of outer space, the issue of resource extraction remains in limbo. For some, resource extraction is a form of ‘use’ according to Art. I. For those against resource extraction in space, the starting point is the prohibition of appropriation under Art. II. The Moon Agreement, the fifth of the Space Treaties, failed to provide an internationally accepted solution (Masson-Zwaan & Hofmann, 2019). Especially the use of the phrase ‘common heritage of mankind’ raised concerns. While it was not clear exactly how this phrase would play out in space, its implications in an arguably adjacent field, namely the law of the sea, were clear: obligatory transfer of technology, sharing of material (e.g., monetary) benefits – none of which were acceptable to spacefaring, developed countries (Von der Dunk & Tronchetti, 2015).
Turning to National Law
This legal uncertainty on the international level creates what Hofmann and Blount call the Investor’s Dilemma – a legal and policy gray zone that creates a legal risk to potential investors that extraction activities they invest in might turn out to be against (international) law. Despite the seemingly all-encompassing, virtuous language adopted by the Space Treaties, the reality is that today, space ventures and related technological and technical advancements are either pursued directly by private entities or need diversified funding schemes, including venture capital. Thus, private actors are indispensable to the advancement of space activities. Policies geared towards creating favorable conditions for private actors are common. This means two things: first, a legal limbo is beyond undesirable for private capital – it is counterproductive and harmful for any spacefaring nation, especially those who want to attract private capital. Second, not only should there be legal certainty, but this legal certainty should guarantee that private actors have something to look forward to in terms of profits (Hofmann & Blount, 2018).
This is the crux of a cyclical interaction between international and national laws. Amidst calls to create an environment of legal certainty to attract investment and provide regulatory stability, several states passed laws that promised a national legal framework on space resources, despite the looming uncertainty in international law. So far, the US, Luxembourg, the UAE, and Japan are the four countries that have laws concerning resources extracted from celestial objects. The latter has recently granted its first commercial license to iSpace, a prominent Japanese company, “for exploration and development of space resources” pursuant to its national law.
Unsurprisingly, these legislative processes were not without controversy. Countries such as Belgium have expressed skepticism about domestic legislation without a multilateral consensus. Major spacefaring nations, such as Russia, have had reservations about unilateral assertions about how international law rules should be read. Indeed, one course of action would be to sustain and expand the multilateral framework through initiatives such as UNCOPUOS. Then, the eventual consensus trickles down to national frameworks. Primarily, the US seems to have reversed this process by carrying its national framework to the international level to acquire more support, unilaterally attempting to elevate its understanding of the law and encouraging other states to pass similar laws.
Internationalizing National Policies
One crucial initiative to elevate the national US framework is the Artemis Accords, or Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, a set of principles guiding the bilateral agreements NASA has entered into with some countries. The Accords seek to “establish a practical set of principles to guide space exploration cooperation among nations participating in [NASA]’s 21st century lunar exploration plans.” So far, the Accords have been signed by 21 countries, including Canada, Japan, Luxembourg, the UAE, Italy, and the UK. Notably, Russia and China are not signatories. In particular, the former has rejected the initiative because it was too US-centric, with only tangential opportunities for other partners. As for the latter, a 2011 Federal Bill prohibits any collaboration, also in the context of the Accords.
Under its Section 10, entitled ‘Space Resources’, the Accords maintain that “the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty”. As illustrated by this Section, these Accords reaffirm that the US and its partners like Luxembourg are willing to follow a particular interpretation of the (in)famously vague prohibition on the national appropriation of celestial bodies. Initiatives such as the Accords undoubtedly have a declaratory significance for their signatory parties. However, what do they actually do, if anything at all, to clarify the international law rules enshrined under the Space Treaties? What normative (and formative) legal value do they possess?
National Laws as Evidence of Customary International Law?
It is one thing to transform a general -yet precise- international law rule or obligation into national law to implement it. It is another to unilaterally declare a domestic interpretation of a rule, as unspecific as Article II of OST, as an international law rule. National laws per se cannot be imposed upon other states as binding rules of international law. Rules contained under the Artemis Accords and other policy work, such as the Building Blocks of the Hague International Space Resources Governance Working Group are undergirded by a network of existing and prospective national frameworks. Indeed, the focus of the Accords is not to grant acquisition and ownership rights to space operators themselves but rather to reaffirm the existing national legislation and promote new ones to emerge. While national laws are not per se sources of international law, their collective ability to indicate, or even prompt, the existence of an international law rule should not be disregarded. Could, for example, a sufficient number of coherent national legislations point towards the presence of a customary international law rule? As is well known, a customary international law rule relies on two requirements: there must be a general state practice, and the States must accept these practices as law (opinio juris). Could the existence of national laws on space resources satisfy one or either of these requirements?
One could turn to the work of the International Law Commission for guidance. According to its Draft conclusions on identification of customary international law, national laws indeed carry some degree of importance. For example, according to the Conclusion 10 commentary, ‘state practice’ also captures the state’s legislative functions. Furthermore, the relevant practice does not have to be conducted vis-à-vis other states and can concern domestic practices. Under Conclusion 6, ILC recognizes legislative and administrative acts as possible ‘forms’ of practice. Under its commentary to Conclusion 10, the Draft conclusions also count national legislation as possible evidence of opinio juris. The commentary specifically notes that “[n]ational legislation, while it is most often the product of political choices, may be valuable as evidence of acceptance as law, particularly where it has been specified … that it is mandated under or gives effect to customary international law.” Especially the last phrase is relevant to Luxembourg’s first attempt at national legislation. Upon receiving the first draft of the 2017 Law on the Exploration and Use of Space Resources, the Conseil d’Etat of Luxembourg cautioned the Chamber of Deputies that the latter’s contention that resources in space could be appropriated ‘in accordance with international law’ was controversial. The Chamber of Deputies responded by removing the reference to international law. Article 1 of the law now reads “[s]pace resources are capable of being owned” without the reference to international law.
Finally, there is the issue of the generality and duration of these practices. The Draft conclusions define generality as “sufficiently widespread and representative.” The ICJ defined it as “extensive and virtually uniform” in the North Sea Continental Shelf cases, but the threshold of sufficiency is difficult to pinpoint despite these clarifications. As for duration, the ICJ noted that the passage of a short period of time is not necessarily an obstacle to the formation of a new rule of customary international law. However, it is clear that a single national law is unlikely to ‘shift’ or create customary international law (cf. Pershing, 2019).
The question of whether resource extraction in space is lawful according to international law is first and foremost a question of how Arts. I and II OST are to be interpreted as treaty provisions. Pursuant to Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties, relevant to its interpretation are “any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty” and “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, respectively. However, diminishing this issue to a simple matter of treaty interpretation without entertaining the relevance of other sources of international law is problematic for two reasons. First of all, regardless of how one classifies initiatives like the Artemis Accords as an ‘agreement relating to the treaty’ or ‘subsequent practice’, they only establish an agreement among a limited number of state parties to the OST. Second, the inquiry into what the treaty text itself means does not mean that the substance of this interpretative process, i.e. the contention that space resources can or cannot be extracted and private property can be acquired as a result of these activities pursuant to Arts. I and II, cannot emerge as a rule of customary international law if the necessary elements are present. The processes of creation or ascertainment of a customary international law rule on the one hand, and a group of states agreeing on an interpretation of a vague rule in a series of agreements on the other, are neither mutually exclusive, nor do they have identical consequences.
For these reasons, the US and the so-called like-minded countries agreeing on a common interpretation of an international law rule does not definitively establish that this is the universally ‘correct’ interpretation, especially in light of the current backlash against this reading of the provision. This is a plurilateral, declaratory attempt at clarifying what the rule means for those states – and while it may have consequences for them, it arguably does not bind other states who disagree with this contention, nor does it preclude a state disagreeing with this interpretation to challenge this view and declare their own, possibly contradictory, reading of the same provision. If the aim is (and this does not even have to be an express aim) the ascertainment or creation of a customary international law rule (through state practice and opinio juris), this clearly does not require states to sign a treaty.
The existence of a treaty rule does not preclude the existence of a customary international rule on the same subject, either. It is clearly possible that the existence or ascertainment of a customary international law rule can eventually culminate into a treaty – there are several examples of customary international law rules being enshrined in treaties, UNCLOS being one example. The US and its partner states, beyond announcing their common interpretation of a treaty rule, can also eventually contend that there in fact exists a customary international law rule which not only helps strengthen their position but also maintains that the customary rule behind it makes it indeed the ‘correct’ interpretation, creating the consequence that it is binding on all states.The above analysis raises the question of whether a ‘sufficiently widespread’ practice of national legislation could prompt the creation of customary international law on natural resources in space, and deem resource extraction in space legal according to international law. The US has already garnered more support under the auspices of its Artemis Accords than the Moon Agreement ever has. It is well within the purview of international law that the US, with enough state support and national legislation backing up its transnational aspirations in the space race, might set a precedent for how customary international law could be carved out of consolidated policy and legislation. Still, the establishment of a customary international law rule requires a very high generality threshold. Thus, whether or not the US can do this without Russia or China supporting its reading of international law remains to be seen – whether it should do it is another question entirely. This is a silent process overshadowed by technological strides and political frictions. Still, with enough support, it could prove to be a very effective tool to legitimize some assertions and aspirations in this new era of the space race.