Space. “There is agreement to move towards the exploitation of space resources”

The law firm’s photo of Cécile Gaubert

On Tuesday, France became the 20th country to join NASA’s lunar exploration program, called Artemis, by signing the “Artemis Agreements” through the National Center for Space Studies (CNES). These determine the framework in which the signatory countries will collaborate on the exploration, exploitation and use of the Moon, Mars, but also other celestial bodies such as asteroids and comets.

Admittedly, the Artémis program has ambitious goals, among which are first and foremost the return of humans to the Moon from 2025. But are the agreements that France has signed in accordance with the 1967 Space Treaty one of the most important texts in the Space Act? The latter stipulates, in fact, that “outer space, including the Moon and other celestial bodies, must not be the subject of national appropriation by proclamation of sovereignty, nor by use or occupation”. However, the Artemis agreements provide for the possibility of delimiting “security zones” in order to avoid “harmful interference” by third parties, in particular to protect the use of resources.

We take stock with Cécile Gaubert, a lawyer specializing in space law.

Can we say that the agreements and the Artemis program are contrary to the laws that exist about space exploration?

The answer is complex, because it is neither yes nor no. There are two parts of the Artemis Agreement, which may be in conflict with the 1967 Treaty on Outer Space, and which raise questions. It is about creating a security zone and utilizing resources. Article 2 of the 1967 Treaty specifies that outer space, including the Moon and other celestial bodies, may not be the subject of national appropriation by proclamation of sovereignty, by use, occupation or in any other way. This article lays down the basic principle of the absence of extension of sovereignty in space or over celestial bodies.

However, the Artemis Agreements set out the principle in Article 7 of the possibility of establishing a safety zone on the Moon in order to “avoid harmful interference”. The question that arises, therefore, is whether the establishment of this safety zone corresponds to a national appropriation of part of the Moon.

But since the provisions of the 1967 Treaty are very vague, this leaves the field open to the free interpretation of the states that will go to explore the Moon, right?

Exactly. The problem is that there is no clear answer. And openly, the Americans say that this is not a grant, that there is no sovereignty over this security zone, that this is not an occupation, and that the Artemis Agreements therefore respect the provisions of the Treaty. This is the interpretation made by the United States, and also by all the countries that have signed the agreements, including France, which has also ratified the 1967 Treaty and is therefore obliged to respect its terms.

Is there therefore a risk of witnessing the exploitation of the moon’s resources when humans set foot on the moon?

The issue mainly concerns certain gases and certain lunar resources, which after treatment would make it possible to use as energy and move satellites, probes, rovers or others. In addition to the Treaty of 1967, we also have a lunar agreement from 1979, which also prohibits the use of space resources. But it is very little signed and even less ratified, not even by France.

In the US, a law change was even drafted in 2015 to specifically allow the utilization of space resources. Also Luxembourg, two years later, then the United Arab Emirates (three countries that signed the Artemis agreements, editor’s note). So there is still agreement today to move towards legalization and exploitation of space resources.

In France, we have nothing at all in the texts on the subject, apart from our commitments at international level.

Can we talk about a legal vacuum in space research with regard to the current treaties, which are ultimately very vague and which allow a very subjective interpretation of the texts?

Yes, that was why the Americans jumped in the breach. Because one of the upcoming activities very clearly is the exploitation of space resources. With all these different sets of rules – the Moon Agreement, the 1967 Treaty, the Artemis Agreements … – we can now say that the activity is legal. And even if it was not legal, what would the sanctions be? And who could implement them? UN? I do not see the UN imposing sanctions on the United States because American companies are exploiting space resources … I very much doubt that one day we will have a binding international document on this subject.

So in space, each country will finally be able to do what it wants …

Yes, and we can draw the parallel with space debris, which is a real topic today. We have more and more inactive satellites, launching rocket elements, which remain in orbit and which cause damage, re-enter the atmosphere. That’s problematic. At the international level, there are only “guidelines” (or recommendations), but no binding document. It is the states that have introduced measures when it suits them, to avoid the generation of waste and collisions.

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