By Cristin Finnigan – 

 

Space capability is advancing rapidly, and humanity can’t wait for outdated international law to catch up. Saudi Arabia’s exit from the Moon Agreement is a step in the right direction.

On July 14, 2022, Saudi Arabia signed the Artemis Accords, a set of principles to guide responsible and sustainable civil space exploration. Six months later, it notified the United Nations of its withdrawal from the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”). The withdrawal will take effect on January 5, 2024.

Saudi Arabia’s departure could be due to the Moon Agreement’s Article 11, which sets strict rules on lunar resource extraction. Article 11 permits mining, but an overarching international regime would manage and distribute any acquired resources, similar to the International Seabed Authority formed under the UN Convention on the Law of the Sea. Countries where companies invest in resource mining activity are not keen on this “top-down” approach because it would severely inhibit the commercial space sector, innovation, and progress. Furthermore, forming such an international regime could take years, causing major delays in lunar missions already in progress.

A party’s withdrawal from the Moon Agreement may indicate it wishes to follow the precedent set by other countries that have already enacted domestic laws enabling space resource mining, leading to the formation of customary international law (“CIL”), or practices that become so common they are accepted as law. Saudi Arabia may wish to align with these countries and conduct its own lunar resource extraction in the future.

CIL is a more organic path. Multilateral agreements can more readily be adapted to meet parties’ needs to foster innovation and the development of private industry. They can also include language to address imminent problems, including long-term space sustainability, equity, and environmental concerns. They are much more efficient than long processes of contracts with an international regulatory body and financial payouts from lunar resource “shares.”

The Artemis Accords are friendlier to lunar resource extraction. They state that the parties will execute resource extraction “in a manner that complies with the Outer Space Treaty” (“OST”).  Article II of the OST assures that a State may not control or possess a celestial body. Artemis Accords Signatories may intend to conduct activity through multilateral international efforts (a “bottom-up” approach), as stated in Section 10, fostering cooperation, transparency, and “the global benefits of space exploration and commerce.”

Saudi Arabia may be the first of several countries to withdraw, signaling that governance of space activity by CIL is favored over an international regime. The US, Luxembourg, the UAE, and Japan currently have domestic space resource laws in place, and all are parties to the Artemis Accords; none are parties to the Moon Agreement. The European Space Agency has plans for lunar resource mining, so Member States such as France, Austria, and Romania could exit the Moon Agreement, as well.

Artemis 3, the first crewed lunar landing of the program, is slated for 2025. Water ice and other resources have been discovered on the moon, and scientists have recently successfully extracted oxygen from lunar soil simulant, all of which are critical for NASA’s goal of a long-term continued presence there. If lunar extraction missions need to wait for an international regime to form to determine how “shares” of resources are divided, they could be delayed for years.

Saudi Arabia’s departure indicates that the Moon Agreement is weakening. With the readiness to embrace the new era of space exploration, the OST and Artemis Accords can guide the future of space governance and humanity’s expansion to the moon and beyond.

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