A Giant Leap for Space Commerce

On October 13, at the virtual International Astronautical Congress, eight nations gathered to propel humanity farther toward the final frontier. Representatives from the United States, Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom signed the Artemis Accords, a cooperative agreement that lays the foundation for future space governance. Announced by NASA in May, the Accords have been the topic of significant interest and speculation by the space-policy community

With the release of the full text, space enthusiasts have good reason for optimism. The Artemis Accords are an ambitious step along the path to space exploration and development. They have major implications for the legal rules governing the use and transfer of celestial resources.

The issue of space resources, and space property rights more generally, has long been in dispute. The 1967 Outer Space Treaty clearly forbids governments from extending territorial jurisdiction to space. This agreement calls into question both the feasibility and permissibility of extraterrestrial property rights. Conventional wisdom says governments are necessary to define and enforce property rights. If they are forbidden to do so by international law, it’s unclear at first what the regime for using and transferring space resources would look like.

History has seen many institutions for defining and enforcing property rights that do not rely on governments. Perhaps the most famous is the ancient “law merchant,” a private and self-enforcing commercial code that flourished during the High Middle Ages to facilitate international trade. The rules governing commerce between nations, themselves derived from the law merchant, are a perfect example of non-governmental law. By definition, no one government has clear jurisdiction. Even today, international trade is largely governed and arbitrated privately. A private commercial code for space is a promising option for supporting nascent space economies without violating the non-appropriation requirement in the Outer Space Treaty. In fact, such a code would be a welcome complement to ongoing efforts at international cooperation and agreements, as represented by the Accords.

In recent years, the United States government has taken several important steps to promote property rights in space without claiming national jurisdiction. In 2015, Congress passed a law to protect U.S. citizens’ claims to celestial resources. Earlier this year, President Trump signed an executive order supporting space commerce. Most importantly, in September, NASA announced it would pay private companies to collect lunar dirt and rocks. This sets a clear precedent: The United States government affirms resources can be claimed and transferred, without violating the ban on celestial sovereignty at the heart of public international space law.

Enter the Artemis Accords, which give a fuller expression to a pro-commerce mindset for outer-space activities and affirm the importance of the Outer Space Treaty: Article 10 reads, “The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.”

Furthermore, the signatories commit to developing a set of practices for “the extraction and utilization of space resources,” including cooperation with the United Nations’ Committee on the Peaceful Uses of Outer Space. This is the best of both worlds: a predictable and fair system for deciding who gets to use what in space, which avoids what could have been a destructive scramble to appropriate celestial real estate.

The Accords were previously criticized by Russia and China as an instrument for de facto U.S. hegemony in space. Now that the U.S. has respected international partners in its coalition, these charges carry significantly less weight. Furthermore, Australia’s signing of the Accords strikes a decisive blow against the claim that the U.S. is looking to appropriate space by other means. Australia also signed the 1979 Moon Agreement, which comes down hard against the permissibility of space property rights. Australia evidently sees no conflict between treating space as the “common heritage of mankind” while also encouraging celestial resource use. That’s a great sign for profitable activities in space.

Contrary to the claims of skeptics, using space resources is neither illegal nor exploitative. In fact, if we want to stay in space long-term, we will have to come up with a system for use and exchange, especially water and minerals. The Artemis Accords recognize that necessity while giving shape to a set of principles that enable nations to coexist peacefully in space. They may even create room for a private body of space commercial law to work alongside international agreements as a means of governing space activities. The Accords are nothing less than a giant leap for humanity’s future in space.

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