SpaceWatch.Global An independent perspective on space
By Dennis O’Brien
The United Nations Committee on Peaceful Uses of Outer Space (COPUOS) recently hosted closed meetings of the Legal Subcommittee’s Working Group on Space Resource Activity at its headquarters in Vienna. The Working Group has just completed the first year of its five-year mandate to review the regulation of such activity, including possible “additional international governance instruments”. Although it had planned to meet only during the Legal Subcommittee’s annual two-week session earlier this year, the Working Group failed at that time to agree on even a preliminary statement.
By the end of the COPUOS session on June 9, the Legal Subcommittee had agreed on a draft report that included an anonymous summary of the views of the Working Group’s participating delegations. There were no final decisions made except concerning a public international conference in 2024 that was called for in the original five-year mandate. That conference will be held concurrent with the two-week COPUOS session next May/June in Vienna so that translation services will be available. There will also be an “Expert meeting collecting preliminary inputs for consideration at the international conference” that will be held in Luxembourg in April during the week following the Legal Subcommittee’s session, in conjunction with the annual Space Resources Week that is organized by the European Space Resources Innovation Centre.
Early Scoping
In addition to the draft report, COPUOS issued one decision following the session:
The Committee noted that the Working Group had agreed that the international conference would be conducted in an inclusive and transparent manner, within the scope and based on the following topics:
(a) Implications of the legal framework for space resource activities;
(b) The role of information-sharing in supporting space resource activities;
(c) The scope of future space resource activities;
(d) Environmental and socioeconomic aspects of space resource activities;
(e) International cooperation in scientific research and technological development for space resource activities.
This list of topics for the conference, along with the summary of delegations’ positions and the public statements made by delegations during COPUOS open sessions, give us a general idea of the scope and direction of the Working Group’s efforts, even though the closed-door discussions remain confidential. The summary of positions is contained in the Legal Subcommittee draft report of June 8, 2023. The video stream of the public statements is available via the COPUOS 2023 index page (sessions 805, 806, and 807).
The Spectrum of Opinion
These documents and videos reveal a wide spectrum of opinions concerning the future governance of outer space resource activity. On one end are those holding the position that no additional international governance is necessary, that the current framework provided by the first four United Nations space treaties (Outer Space Treaty (OST), Registration Convention, Liability Convention, and Rescue/Return Agreement) is adequate. Any additional governance, they assert, can be provided by national laws that authorize private activity and ad-hoc agreements between countries or groups of countries as the need arises. This group is led by the United States, Japan, and some of the other countries who are partnering with the United States in the Artemis Project and have signed the Artemis Accords.
The United States spoke only about the general benefits to mankind from space activity, calling for cooperation among all nations but not endorsing any sharing of resources or the income that space resource activity would produce.
At the other end of the spectrum are countries holding the position that a new binding international agreement is essential for governing outer space resource activity, with some calling for a new supra-national authority like the one in the Convention on the Law of the Seas, whose approval would be needed before any such activity. Those supporting such authority are led by Russia and Venezuela, who assert that relying on national law to establish property rights in outer space is an improper appropriation and extension of sovereignty that is forbidden by Article II of the OST.
In between are those countries holding the position that a new binding international agreement on space resource activity is needed, but not necessarily one that includes a new supra-national authority. Instead, they assert that a new agreement with specific authorizations and prohibitions would provide sufficient governance to support private activity in outer space while still protecting essential public policies like open access, non-appropriation, and sites of scientific/cultural/historic interest. This group is led by Australia (the only country to sign both the Moon Treaty and the Artemis Accords) and others who are trying to bridge the gap between the two worlds, both literally and figuratively.
Areas of Interest and Concern
Those nations who spoke about the process agreed that COPUOS and its subcommittees were the best forum for developing the governance of outer space resource activities. They supported the formation and work of the space resources Working Group and the international conference to be held in 2024, but they wanted it kept in Vienna to use COPUOS facilities. A two-part conference was proposed but did not achieve consensus. Instead, a “preliminary” meeting will be sponsored by Belgium and Luxembourg to gather expert opinion. Details have not yet been announced.
Almost every nation acknowledged the necessity of binding international agreements and accepted the first four UN space treaties as the current legal framework. But opinions on the need for any new instrument were divided, as noted above. There was a general agreement that, if any new governance was created, it must be specific and have clearly defined rules in order to clear up the ambiguities of the current treaties that are impeding private activity and contributing to potential conflict.
Many delegations referred to Article I of the Outer Space Treaty:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
That the current situation is reminiscent of the Age of Exploration/Imperialism/Colonialism
The Group of 77 (now 134 developing countries), China, the United Kingdom, Germany, and South Africa all made public statements supporting sharing the benefits of space resource activity with developing countries, stating that we must consider the interests of developing countries when making any policy decisions. The United States, on the other hand, spoke only about the general benefits to mankind from space activity, calling for cooperation among all nations but not endorsing any sharing of resources or the income that space resource activity would produce. Countries across the spectrum supported capacity-building for developing countries, in both technology (some called for sharing technology) and in the institutions of national space law.
Many countries supported enhanced implementation of the current legal framework, including OST Article I (free access), Article II (non-appropriation), and Article IX (due regard and avoiding harmful interference). They also supported the increased use of OST Article XI and the Registration Convention to give notice of activities and promote safety and cooperation. A few countries (Russia, United Kingdom, Japan) went so far as to cite COPUOS’s Long-Term Sustainability guidelines and encourage their inclusion in any legal framework. Other countries, while not mentioning the guidelines, promoted sustainability and protection of the environment, on Earth and in space, as core principles for any new agreement.
These documents and videos reveal a wide spectrum of opinions concerning the future governance of outer space resource activity
Some countries focused on the definition of space resources and the scope of such activity to be considered. Should radio frequencies and the limited number of slots in geostationary orbit be included? What about peaks of eternal sunlight, or lava tubes that would facilitate bases and settlements? Is space tourism a resource activity, and should it be regulated to preserve areas of heightened scientific and historical/cultural interest? How will we manage space traffic and mitigate debris? How will we maintain dark and quiet skies, critical for optical and radio astronomy? Some of these issues may seem peripheral to managing space resource activity, but they are all affected by it.
Perhaps most surprising was the emergence of information sharing as a basic principle in any framework for the utilization of outer space resources. Countries as diverse as the United States and China supported the concept, and it was specifically enumerated as the second of five topics approved for next year’s public conference. In addition to the enhanced registration and notification mentioned above, delegates also mentioned sharing the results of space resource activity, which would include the discovery of new resources by private industry. This issue was explored in detail in a SpaceWatch.Global article last fall (Confidential or Shared? The Discovery of Outer Space Resources by the Private Sector).
Finally, a historical perspective was offered by Venezuela and the Moon Village Association (a COPUOS official observer). They noted that the current situation is reminiscent of the Age of Exploration/ Imperialism/ Colonialism that began five centuries ago and whose effects are still being felt today. Then, as now, powerful countries with advanced technology sought to control the resources of “new” worlds. But instead of cooperation and free access, those countries relied on conflict and exclusive claims, causing war, suffering, and neglect that affected millions, perhaps billions. Those who share this position fear that humanity is once again drifting in that direction, and that a new binding international agreement that guarantees free access and sharing of information is the only way to avoid it.
The Next Four Years
Since this was the first set of meetings for the Working Group on Space Resource Activities under its five-year mandate, no one expected any final decisions to be made. Although there was a preliminary decision as to the scope of next year’s public conference, most countries seemed to be staking out positions and creating “bargaining chips” for future negotiations. For example, it is very unlikely that there will ever be consensus for a supra-national authority like in the Convention on the Law of the Seas, but it will be kept on the table and perhaps traded for mandatory sharing of information. There is also widespread support for allowing resources that are removed from in place to become the private property of whoever removed them, but that will probably not attain consensus without a simultaneous agreement that private entities are also bound by the terms of any new agreement (aka The Grand Bargain: Private Property Rights for Public Policy Obligations).
Some of these issues may seem peripheral to managing space resource activity, but they are all affected by it.
Such positioning and negotiating will likely continue through the five years of the Working Group’s mandate, and most of the negotiating will be done in closed meetings. But there is still an opportunity for the rest of humanity to have an impact. Diplomatic negotiations are affected by “facts on the ground”, usually the changing fortunes of war. But they can also be affected by scientific and social changes, particularly if the latter is accompanied by a groundswell of public opinion/expression. Next year’s public conference/meetings would be a logical focus for such activity. We cannot yet know what banner or concept might coalesce and inspire people and organizations who want to avoid a cold war in outer space. Beyond the issues discussed above, there are also many who want to protect the rights of individuals and the rights of settlements to be self-governing. But at this moment in history, the key to the peaceful and sustainable development of outer space might very well lie with our closest neighbour.
It’s time to share the Moon.
Dennis O’Brien is a space lawyer and former member of the NASA – UC Law Research Project in San Francisco. He is the founder and president of The Space Treaty Project, a California-based scientific/educational nonprofit. He is a member of The Moon Village Association and is part of their Adaptive Governance Working Group. He is also on the Space Law Committee of Space Renaissance International. The opinions expressed here are not necessarily shared by these organizations or their members. To support the work of the Project, please sign the Share the Moon petition.
