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Gallagher, William --- "Sic Itur Ad Astra: The CHM Principle, Celestial Bodies, the Moon Agreement and the Artemis Accords" [2021] CanLawRw 17; (2021) 18(2) Canberra Law Review 106


Sic Itur Ad Astra: The CHM Principle, Celestial Bodies,

the Moon Agreement and the Artemis Accords

William Gallagher*

This article considers the Common Heritage of Mankind Principle (CHM) in an exploration of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies and the 2020 Artemis Accord. From an Australian perspective, the Moon Agreement is inadequate international law because of its incapacity in regulating great powers due to the low rate of signature on the treaty. As such, signatories are put at an unreasonable disadvantage. Regulation should develop for the purpose of international cooperation and ratification. The article discusses Australia’s interests and the shape of regulation that reflects the CHM.

I Introduction

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.

The above statement is articulated in Article 1 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (herein referred to as the ‘OST’). [1]Article 1 of the OST has defined the way in which space affairs have been conducted since 1967. The treaty’s primary purpose is to foster international cooperation in the peaceful use of outer space. Whilst the OST is not the primary focus of this article, Article 1 of the OST highlights an underlying principle known as the common heritage of mankind principle (herein the ‘CHM principle’) which will present a large focus of this article. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (herein referred to as the ‘Moon Agreement’)[2] is the predominant piece of international law that elaborates on the common heritage of mankind principle pertaining to space, as such this piece will be a primary feature of this article with a particular focus on Article 11 of the Moon Agreement which relates to the exploitation of celestial bodies.

At the time of space laws’ inception, the predominant concern of the United Nations (UN) and its signatories was the exploitation of space by state actors as a consequence of the instability presented by the Cold War. From the perspective of maintaining international order, it is logical that regulation surrounding space mining should develop similarly to deep sea mining due to their likeness. Their likeness exists through their common trait of being beyond national sovereign claims and these area’s use for scientific and peaceful purposes. As such, at the time of space law’s inception, it made sense to create law that would be analogous to existing law. However, from an Australian domestic perspective, the Moon Agreement is insufficient as a piece of international law because of its incapacity in regulating great powers due to the low rate of signature on the treaty. As such, signatories are put at an unreasonable disadvantage. Regulation should develop for the purpose of international cooperation and ratification whilst also discussing Australia’s interests in this space.

Australia is the only state to have signed both the Artemis Accord[3] and the Moon Agreement.[4] Australia must spearhead the development of international law regulating asteroid mining for this reason. Australia should seek the support of member states to the Moon Agreement to amend the agreement, however, this is highly unlikely and as such it will ultimately require Australia to choose to withdraw from the Moon Agreement. Whilst extreme, withdrawing support from the Moon Agreement will allow Australia to align its’ values with the US and benefit from the eventual exploitation of celestial bodies. Aligning Australia’s interests with the United States will continue to strengthen the two states’ longstanding positive relationship, as well as Australia’s relationship with other signatories such as the United Kingdom, Japan, and the Republic of Korea. Simply put, the primary considerations of this article are:

a) The common heritage of mankind principle; and

b) The development of regulation concerning deep sea mining; and

c) How the law should develop from an international perspective pertaining to the common heritage of mankind principle and celestial body exploitation; and

d) How the law pertaining to celestial body exploitation should develop from an Australian domestic perspective.

This article looks at how the common heritage of mankind principle developed over the 20th and 21st centuries. It will further analyse events or circumstances that it applies to, the elements of the principle, and the principle’s legal status. Through this analysis, it becomes clear that the meaning of the common heritage of mankind principle is ambiguous despite its use in international law over the past several decades.

As a result, this presents significant challenges when determining how asteroid mining should be regulated. In combination with this, the Moon Agreement is effectively useless presenting further challenges regarding enforceability. The Agreement is ineffective because no powerful state has agreed to be bound by it such as the United States of America, the Russian Federation and China.

Purpose

This article contributes to the evolving area of international space law as well as Australian domestic legislation. Literature in this space exists but is limited in its application to Australia. Due to Australia’s new membership to the Artemis Accord, there is next to no literature discussing the complexity of the relationship between the two. As such, the path for Australia is one to be determined. This article contributes to discussion by analysing the strengths and weaknesses pertaining to international law with respect to the principle of the common heritage of mankind and how it currently impacts and will impact the regulatory schemes behind global mining industries. In conjunction with this, Australia’s advanced mining capability is a strength it may choose to exploit to further strengthen its economic prowess through cooperation with the United States of America.

The exploitation of celestial bodies is the primary focus of this article. However, in order to aptly analyse the law surrounding this industry, it is necessary to analyse deep-sea mining in order to get a complete understanding of how the law may develop. The Deep-sea and its exploitation is intrinsically linked with the exploitation of Outer Space, states such as the United States have refused to ratify the UN Convention on the law of the sea because of this link.[5] Moving on, the UN Convention on the Law of the Sea, the related Implementation Agreement, the Moon Agreement, and the Artemis Accords will be the primary pieces of law to be analysed through this article. The Moon Agreement, different to the Outer Space Treaty, is one of 5 treaties enacted to regulate the exploration, exploitation, and colonisation of Space under international law. It is widely accepted as the least effective treaty that governs space due to its failure to encourage global powers to be bound by it. Australia is one of the few middle powers to have signed the Agreement, as a result of this, Australia should continue to fulfil its obligations under the agreement until such time it chooses to withdraw, or amendments are made to the Agreement so long as the amendments encourage superpower states to be bound by them.

The Artemis Accords is an agreement that was signed in November of 2020 by Australia in conjunction with the United States and several other states. Many of the principles found within the Accord are contrary to the Moon Agreement and as such Australia has found itself in a precarious position that must be navigated through. This precarious position is because of conflicting provisions relating to celestial body exploitation, which, if not resolved would result in Australia breaching international law.

This article will also briefly look at Australia’s domestic legislation to provide an understanding of the country’s current interests and approach to space. The main focus of this article is that of celestial body exploitation. The article will draw analysis of the law of the sea, specifically the provisions and regulation presently developing around deep-sea mining in order to discuss the difficulties presented by the common heritage of mankind principle.

This article largely uses comparative research methodology by comparing primary sources such as the United Nations Convention on the Law of the Sea (UNCLOS) and the Moon Agreement to understand how the law pertaining to asteroid mining may develop into the future and provide suggestions for reform and development by comparing the law that is currently developing surrounding Deep-Sea mining. It further uses secondary sources to discuss the relationship between the Moon Agreement and the Artemis Accords from an Australian perspective.

Structure

This article is comprised of four themed sections. Section 2 begins by laying out the origins and meanings of the common heritage of mankind principle over the past 70 years through reference to Deep Sea mining and the Antarctic treaty, thus connecting it to the discussion found in Section 3.

Section 3, in combination with its analysis of the International Seabed Authority and Deep-Sea mining will look at international law surrounding asteroid mining through reference to the Moon agreement and provide comment on how the law should develop in the interest of all mankind. This article notes that to represent the entirety of humankind’s interests is subjective as perspectives differ from a variety of factors such as culture, economic capacity, age demographics and a number of other factors, especially geopolitical tensions. The goal of the implementation of any system must focus itself on fairness. This article looks to make a judgement as to what is in the interest of mankind by evaluating the principles primary components that are referenced in Section 2, specifically regarding the peaceful purposes clauses, environmental clauses, and economic benefit.

The fourth section is concerned with the interaction between the Moon Agreement and the Artemis Accords. It will discuss how Australia’s present position, if it were to act upon either agreement would result in a contravention of the other agreement. It will discuss Australia’s interests and provide suggestions as to how the Moon Agreement should develop from an Australian perspective. In the alternative, it will provide reasoning as to why Australia may wish to withdraw from the Moon Agreement until such time that reasonable amendments are made to encourage global participation in the Agreement. The article will then conclude, presenting its findings and suggestions from both an International, and domestic Australian perspective.

The Common Heritage of Mankind Principle

This section discusses the origins of the common heritage of mankind principle and provides three examples of its use in modern international law. It then presents arguments in favour of and against the principle. It will wrap up by explaining why the principle in its current form is too ambiguous for it to be effective in regulating signatories whilst simultaneously serving as a barrier to encourage global powers to become signatories.

The CHM Principle is of particular importance to this article, and moreover, the future of Space Mining when looked at from the perspective of the UN and developing nations. It must be understood that in the principle’s current form in law it is not possible to gather a complete understanding from any single definition this thesis could present. Rather, an analysis of each piece of law that contains the principle would have to take place. Clearly, this presents difficulty to states and non-state actors alike due to its inconsistency in international law. In spite of this, this article gives credit to, and notes that the original purpose of the principle was described by the father of the law of the sea as:

In ocean space, ... the time has come to recognise as a basic principle of international law the overriding common interest of mankind in the preservation of the quality of the marine environment and in the rational and equitable development of resources lying beyond national jurisdiction.[6]

Pardo later elaborated upon his wishes for the concept of the principle as:

[F]irst, the common heritage cannot be appropriated — it could be used but not owned; second, the use of the common heritage required a system of management in which all users must share; third, it implied an active sharing of benefits, including not only financial benefits but also benefits derived from shared management and exchange and transfer of technologies; fourth, the principle of common heritage implied eventual reservation for peaceful purposes; and, finally, it implied transmission of the heritage substantially unimpaired to future generations.[7]

The basic pillars of the principle are found within the above quote and encapsulate the purpose and basic meaning of the principle from Pardo’s perspective. This article seeks to provide clarity surrounding the principle by referring to the principle as the rational and equitable development of resources lying beyond national jurisdiction. To provide further clarity, as discussed in part 2.3, the UN should seek to further clarify what it means when stating that[8] resources should be developed or shared equitably. Consequently, space, planets, asteroids, and other celestial bodies all fall within this category. As such, these bodies, through this article’ understanding ought to be subject to equitable and rational development and exploitation. Of further note, whilst the principle was coined for the purpose of the law of the sea, its first implementation into law was in fact the Moon Agreement, which was adopted by the general assembly in 1979, [9] though it did not enter into force until 1984 whilst the UNCLOS III entered into force in 1982. This is significant to this article because it demonstrates the inefficacy of the Moon Agreement in encouraging participation whereas UNCLOS III may be seen as a successful international treaty.

As explained above there is little to no consensus on what the principle means and what obligations it sets out. Both from an analysis of the law, and from the perspective of developing and developed nations which is to be explained below. The only consensus that presently exists is that the principle is a concept for the management of areas that are not within national jurisdictions. In summary, it appears that the principle in its present form sets out a moral undertaking rather than any meaningful legal obligation. If the principle provided a legal obligation on its own, then any subsequent provisions, such as those that exist to provide for peaceful purposes would become unnecessary. In actuality, it appears that the only obligation, either legal or moral that exists, is that mankind, or humankind recognises that the maintenance of a resource, or a bundle of resources is in the interest of mankind.

It may perhaps be wiser to recognise the principle as a bundle of provisions, rather than any single article. [10] This article does not seek to understate the importance of moral obligations such as the principle. However, it does recognise that in its current form it is only possible to gather a semblance of understanding of the principle on a case-by-case basis by analysing the content of each treaty rather than a single cohesive definition by which a state, or non-state actor may refer to.

Differing perspectives on the CHM

This article understands that a certain level of ambiguity may at times encourage inclusion in treaties, however, where it becomes too ambiguous, its efficacy becomes no more than that of a political concept, resulting in an idea rather than any concrete legal obligation. Due to the nature of the principle as it stands in the UNCLOS III, the principle seemingly questioned long standing international legal principles by shifting away from the centrality of state sovereignty and national interests to one of global benefits. This was controversial among states that had previously interpreted the ‘freedom of the high seas’[11] as a right to use the oceans and seas as they please, resulting in the degradation and pollution of the oceans and seas with little to no regard for the environment nor the economic interests of developing nations.[12] The creation of the principle brings this article to its analysis of how it has been included in law pertaining to Deep-Sea mining, the Antarctic treaty, and inevitably, the Moon Agreement to demonstrate its broad use and ambiguity in its application. Of particular relevance, Part 2.3. No Man’s Seabed discusses the interpretation of the term equitably versus equally to demonstrate one of the challenges that is posed by the principle.

No Man’s Seabed

The purpose of the UNCLOS III is stated in its preamble, which among other things, the primary purpose of the convention prioritising the creation of a legal order which will facilitate international communications and the peaceful use of the sea and that the CHM principle is developed relating to the seabed for the purpose of ensuring that any exploration and exploitation of the seabed is carried out for the benefit of mankind as a whole.

Whilst a number of other important areas of law are mentioned in the preamble that are foundational to the convention, the inclusion of the CHM principle demonstrates that it was also to be considered as foundational upon international law. The succeeding paragraphs, in addition to further discussion in section 2 will analyse whether UNCLOS III has been effective at implementing the CHM Principle. The principle was not a passing thought, it was a central principle in the convention. Specifically, the convention states that: ‘The United Nations... declared that the area of the seabed and ocean floor.... (are) beyond the limits of national jurisdiction, as well as its resources, ... are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole...’[13] The inclusion of the principle into the UNCLOS[14] as illustrated through the preamble, is vastly important, and similarly to the Moon Agreement resulted in much controversy. This indirectly resulted in the US, among other states, refusing to become a signatory and instead creating their own pieces of domestic law and multilateral agreements by which to regulate themselves. [15] Whilst the US originally declined to become a signatory to the convention, it eventually signed a complimentary agreement which amended the convention in 1994. As of 2021 the US has not ratified the Convention nor the agreement. It should also be noted, that in spite of the US’ refusal to ratify the convention, it has yet to provide any licenses to non-state actors that would allow them to exploit resources outside of their territorial waters. The US was able to be convinced to sign the 1994 Agreement due to changes in the way that the International Seabed Authority (ISA) was to operate, the change in the decision-making system allows the individual interests of states to override the interests of mankind. [16] The US, in its decision to refuse signing the convention stated that, it was opposed to the original system as it “unfairly and unnecessarily granted a disproportionate voice to developing countries that have little or no investment in seabed mining operation.” [17] This view was echoed by other developed nations. [18] Excluding the states which have chosen not to sign or ratify either the Convention or the Agreement, the CHM principle primarily concerns itself with the management and access to resources rather than necessarily the ownership of territory. This is the case because the principle deals with international management of resources within a territory rather than the territory itself. [19]

Under the principle, claims of titles are worthless and unrecognised,[20] thus the issue becomes access. The primary benefit of the principle comes to developing and landlocked nations, their understanding as the principle means that any designated area falls under the jurisdiction of no single sovereign, but instead to all nations. This understanding unsurprisingly is of contention to developed states, which interpret the principle as meaning that ‘any state can exploit the natural resources so long as no single nation claims exclusive jurisdiction.’[21] Effectively, access is given to all states, whether they choose to, and whether they have the capacity to exploit that access is up to them, thus not burdening developed nations.

A significant issue within the provisions providing for the principle can be found in Article 140(2) of the convention, particularly, it governs the rules for the authority stating that it “shall provide for equitable sharing of financial and other economic benefits...”[22] The issue of contention is the term equitable, if interpreted literally, equitable sharing may imply sharing based on contribution to the exploitation of materials. Conversely, if equal were to be used, it would imply dividing the benefits evenly, this, among other things was part of the reason the United States refused to become a signatory to begin with. The usage of equitable sharing is also seen in the Moon Agreement. Further, relating to the Moon agreement, it would be prudent, from an international perspective to provide further clarity on the present usage of the term and make necessary amendments to encourage signature and ratification. The principle in action will be further discussed in section 2 where it will analyse the application of the principle relating to the International Seabed Authority and its impact on deep sea mining.

As mentioned above, a subsequent Agreement related to UNCLOS III was adopted in June 1994 that complemented the convention. This Agreement, formally known as the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (the “Implementation Agreement”)[23] amended a number of controversial provisions found in the convention. Among other things, the Implementation Agreement reduced operating costs of the International Seabed Authority, protected intellectual property rights by eliminating obligatory technology transfers and changed the way voting was to occur in the ISA. It further developed the meaning of benefit sharing by developing an economic assistance fund, which is to be solely financed through payments from contractors and voluntary contributions. Instead of the division of resources that have been exploited, the ISA has come up with an alternate scheme best understood as a parallel system, effectively, a parallel system is the division of an area, not necessarily having common borders, being split into two areas of equal commercial value. The parallel system is explained in further detail in this section. This system will be used as a suggestion as to how the United Nations may be able to encourage the participation by larger states into a complimentary agreement to the Moon Agreement. This would have a similar premise as the Implementing Agreement.

Sovereign Claims on the High Seas

As has been discussed in prior paragraphs, an important part of the principle is that it restricts and refuses to recognise any sovereign claim over any area within. Effectively, part of the principle provides ownership to the entire world over these areas, but the ownership only exists in its entirety and cannot be divided. Articles pertaining to sovereign claims over the high seas are featured throughout UNCLOS III. Firstly, it is mentioned in the preamble, following that it is mentioned in Part VII pertaining to the high seas generally, and is further mentioned in Article 137 which is the core of the convention’s position on the principle. [24]

Antarctica

Whilst the Antarctic Treaty does not explicitly contain the CHM Principle, many of its’ provisions feature similar characteristics to the effect of many of the provisions found in the UNCLOS III or Moon Agreement. Articles I-III all echo many of the provisions that assist to make up the principle as can be seen below:

(1) Article I mandates that: Antarctica shall be used for peaceful purposes only. This concept can be found in UNCLOS III Articles 88 and 141 for example, Art 141 of UNCLOS specifically governs for the area to be used exclusively for peaceful purposes and is prescribed for under the CHM principles.

(2) Article II mandates that: freedom of scientific investigation and cooperation... shall continue.

(3) Article III mandates that: scientific observations and results from Antarctica shall be... made freely available. [25]

Whilst this article specifically analyses the principle with respect to celestial body mining, the Antarctic Treaty demonstrates that it is the provisions subsequent to the principle within a treaty that empower the principle, and that its’ exclusion from a treaty does not expressly remove the moral obligation to protect a resource, or area of land. In addition to the Antarctic Treaty, another agreement, known as the Protocol on Environmental Protection (the Madrid Protocol)[26] bans mining in Antarctica indefinitely, rather than economic reasons, the common heritage of mankind exists through the world’s interest in maintaining the environment by banning mining. Whilst this does not alone imply the existence of the CHM principle in Antarctica, if it is looked at from a broad perspective, it can be observed that the principle, or a significant number of components found within the principle can be found in Antarctic international law, and as such, it is reasonable to consider Antarctic International law a part of the CHM principle.

The Antarctic territory is presently subject to legitimate territorial claims from 7 states; however, the Antarctic Treaty has barred any claim from existing from 1961 onwards, further, no claim can be enlarged. As such, Antarctica’s system is quite different to that of the Moon Agreement or UNCLOS III. As such, the principle of common heritage stands, albeit with exceptions due to historical claims. Noting these exceptions, similarly to the UNCLOS III, there exists an environmental and economic interest in Antarctica. These interests are protected by the treaty and the Madrid Protocol in a way that is not unsimilar to the law of the seas. As such, many of the core features found within the CHM principle exists within Antarctica.

CHM Provisions

In summary, the CHM principle retains the following core tenets, an area beyond claims of national sovereignty, an objective to protect a resource or area in the interest of all mankind, the development of an area for scientific advancement and the interest in maintaining peace in any area provided for. The previous paragraph established that the CHM principle can apply without being explicitly stated. As such, the CHM principle is best described as a bundle of provisions rather than any single term, it is present in the Antarctic territory and treaty and could continue to exist in the Moon Agreement were Article 11 be amended or removed in line with the suggestions provided for in the next sections.

The Moon Agreement

The Moon Agreement was the first piece of international law that included the CHM principle. Whilst it was the first, it is regarded as the least impactful piece of law containing the CHM principle because of its low participation rates as a result of contentions surrounding Article 11. Moreover, it is arguably the least impactful piece of Space law. Due to the Agreement’s low number of signatories, including powerful states such as the USA, the Russian Federation, and the People’s Republic of China. As such, the states that are most likely to achieve celestial body exploitation have not agreed to bind themselves by this piece of international law. It is in the interests of developing nations that the Moon Agreement be amended to encourage developed states to participate.

Whilst the Agreement is not without issue, it is worth analysing the components found within the Agreement in order to get a fuller understanding of the CHM Principle and to demonstrate its versatility in application. The versatility of the principle demonstrates significant benefits, in that it allows for broader interpretation but also provides for significant issues, such as discussed in part 2.3. ‘No man’s seabed.’ Moving forward, the principle is contained in Article 11 stating, that:

1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 or this article.

Paragraph 5 of the same Article states that:

5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.

Effectively, paragraph 1 of Article 11 provides for the CHM principle. Further, paragraph 5 of the same article enables the creation of an authority, similarly to the international seabed authority to in order to provide for the components that are found within the principle.[27] The Moon Agreement’s primary interest relating to the principle is the rational and equitable sharing of benefits of resources that are of the common heritage of mankind. Further, the article also provides that the Moon is not subject to national appropriation by any claim of sovereignty, this is in line with how the principle is presented in the UNCLOS III and the Antarctic Treaties (Madrid Protocol). However, the equitable sharing of the ‘benefits’ of resources extracted from the Moon and other celestial bodies is not reasonable comparable to that of the sea because of the extreme difficulty and lack of profitability of space resources for the foreseeable future.

III – THE PRINCIPLE IN ACTION RELATING TO THE DEEP SEA AND THE MOON

This section discusses the impact the principle has had in practise on international regulation. It will discuss the International Seabed Authority’s contribution to, or lack thereof in its role in the development to the common heritage of mankind principle in setting up meaningful administrative processes to manage the equitable sharing of, and access to resources. It then proceeds to discuss how the information discussed pertaining to the ISA may be applied in relation to celestial body exploitation.

Whilst the principle exists in a variety of pieces of international law, little has been done in practice to meaningfully manifest and administer the principle, as, whilst the Authority has been created, it has not yet had the chance to exercise its powers beyond the granting of exploration licences. Beyond the creation of the International Seabed Authority, the principle exists solely as a moral obligation. At present, it would be reasonable to pronounce the principle as nothing more than an idea, rather than any concrete concept by which states regulate themselves by. The ISA has developed a framework to enact the principle, however, significant steps are yet to have been taken to make the framework effective. This section will introduce and discuss the role and functions of the ISA with a view to provide insight into the strengths and weaknesses of the authority and how it may or may not be applied to an international celestial body authority.

The International Seabed Authority

A core development established by the UNCLOS III was the creation of an intergovernmental body designed to act as an agent for dispensing the common good on behalf of mankind. Despite the powerful abilities granted to the ISA[28], it has faced various challenges that have severely impacted its capacity to develop meaningful legal rules and administrative processes. The ISA was established as the organ through which all states party to UNCLOS organise and control all seabed mining related activities within an area.[2]

The ISA has three bodies (the Assembly, the Council, and the Secretariat). These operate through two organs, the Legal and Technical Commission and the Finance Committee. [29] Whilst not directly relevant to the article, there is an additional organ called the Enterprise, it was created for the purpose of overseeing mining, transportation, processing, and the sale of resources. This was never set up and as such will not be discussed in this article.[30] The Secretariat currently performs the role of the Enterprise. Moving on, the ISA effectively serves as the Legislature and Executive simultaneously, similar to that of governments using the Westminster system. This enables them to create rules and simultaneously enforce them for the purpose of the protection of the area (including for environmental purposes) in the interest of the common heritage of mankind.[31] This encapsulates the processes used for executing activities within an area and the equitable sharing of benefits among other things.

The ISA faces exceedingly complex challenges. There was and continues to be a need to establish a viable framework which encourages commercial investment whilst providing for legal stability for parties to make informed decisions and mitigating environmental degradation. [32] As of 2021, there have been zero exploitation contracts issued by the ISA. However, 31 15-years exploration contracts for polymetallic nodule fields containing minerals such as iron and manganese and other resources have been entered into by the ISA, commercial operators, and sponsor state parties.[33] In August 2017, the ISA issued its’ first set of draft regulations on exploitation of resources in the deep-sea for public comment. These regulations were the product of a four-year consultation process from ISA stakeholders, discussion papers and expert workshops. In March of 2018, the Council conducted its’ first substantive evaluation of the drafts. Since then, from the perspective of the ISA there has been little movement occurring beyond further community consultation and exploration licences granted to commercial actors. This process was especially slow as a result of conflicting views on how the authority should develop, as well as the application of the equitable division provisions among others.

As a result of the slow development of the regulation, the nation of Nauru has recently invoked its right to compel the ISA to allow seabed mining to go ahead within two years, thus ensuring that regulation must be finalised by middle 2023. [34] This invocation has brought an end to a 29-year delay between the ISA’s inception and the implementation of relevant regulation that will allow for the seabed to be exploited for mineral resources. Whilst the delay in creating administrative processes is extreme, the ISA has faced a number of challenges from various lobbying groups, with concerns regarding environmental damage, ‘unfair’ deals for commercial actors, or for developed or developing nations., the creation of law that applies to the globe is challenging. these challenges are discussed in the following sections.

Processes In Existence For The Division Of Seabed Resources

The International Seabed Authority’s current approach to allow for the ‘equitable’ sharing of resources occurs when an exploration license is applied for. Every application made for the purpose of exploration by a developed State must cover a total area that is sufficient to allow two mining operations concurrently. At present, the two areas need not be contained within a single area, but the applicant is required to divide the total area into two parts of equal estimated commercial value, which must be substantiated through the provision of survey data. This process, whilst costly and time-consuming for commercial operators, allows for a ‘fairer’ process than straight division of wealth on an equal basis. Rather, this process seems to uphold the understanding of equitable sharing, though it falls short in encouraging international cooperation. The concept of fairness is discussed below.

Fairness in the Parallel System

In an international context, the meaning of fairness is inevitably subjective. It is this way because fairness is subjective and very much impacted by ethnocentrism. Ethnocentrism is the concept of a term being based on a cultural view rather than being universally objective. However, as stated by Franck, who was described as a leading American scholar of international law,[35] fairness is decided upon by consensus, or, by legitimacy and compliance. Legitimacy implies an idea that for a system of rules to be fair, “it must be made firmly rooted in a framework of formal requirements about how rules are made, interpreted and applied.” [36] Distributive justice on the other hand deals with the substantive value of rules and how they may challenge existing procedure. Where these factors exist and are not inconsistent with another, then, and only then may fairness be determined. Where they exist, the rules become valid on the basis that they are voluntarily complied with by the international legal system. In regard to the parallel system created by the ISA, its fairness can only be determined by looking at the community consultation process as well as the figures surrounding how many signatories there are within the Convention and Implementation Agreement. By briefly analysing these numbers, it provides some level of understanding as to the fairness of the system in the context of procedural fairness.

Franck elaborated upon distributive justice by referencing the pre-existing Maximin principle, coined by John Rawls stating that “unequal distribution is justifiable only if it narrows, or does not widen, the existing inequality of persons’ and/or states’ entitlements.’ [37] In his elaboration, Franck stated that ‘fairness as a destination remains for us always an open question... we assume that fairness incorporates an element of equalisation: of life chances and access to goods.... the issue is not a society’s definition of fairness in any particular instance... rather the openness by which those definitions are reached.’ [38] In simpler terms, distributive justice concerns itself with change, in furtherance, it concerns itself with whether the rule is an appropriate allocation of burdens and benefits and secured throughout society by the rule or rules themselves. [39] In this regard, to determine fairness of the parallel system, it must be determined whether the allocation of the burden of exploring two areas and one being placed in reserve is sufficiently beneficial for the exploring parties. Whilst a state may choose to give legitimacy to a rule, as the state parties that have signed the convention and the Implementation Agreement have, the rule becomes fair if, and only if, the distribution of what the rule concerns is reasonably beneficial or burdensome.

The next section will use this understanding of fairness to make an impartial analysis of whether the parallel system is fair. Whilst there is an intent to make an impartial analysis, it is worth noting that there are inevitably subjective elements to the authors understanding of fairness in this context. Fairness is to be determined on whether the following factors are present: legitimacy and distributive justice.

Legitimacy is to be determined by whether state parties have contributed to, voluntarily entered into, and ratified a piece of law. In order to determine whether these circumstances have occurred it is necessary to look at the numbers surrounding entrance into the agreements.

Annex III of the Implementation Agreement establishes the basic conditions behind the exploration and exploitation of the seabed. Article 8 of the same Annex establishes the processes behind the division of land in respect to placing areas of land in reserve. The Implementation Agreement has, as of 2021, 79 signatories and 151 parties out of the recognised 193 countries in the world. This results in figures of slightly over three quarters of the world consenting to be bound by the agreement, and, by proxy, the convention. Australia is both a signatory and a party to the agreement. Firstly, it can be argued that given the Implementation Agreements’ purpose was to elaborate upon existing principles that firmly rooted in a framework of clearly articulated rules. Secondly, the manner of which international law functions, through voluntary compliance further encourages fairness for all parties involved from the perspective of legitimacy.

Accordingly the Implementation Agreement itself can be considered legitimate. Community consultation relating to the work the International Seabed Authority has been conducting over the past decade further cements the legitimacy of the rule of the law of the sea and the administrative processes behind it. On multiple occasions, the International Seabed Authority has welcomed input from stakeholders, and governments from states both developed and developing. [40]This process further strengthens the legitimacy of the ISA’s actions in regulating the exploration and exploitation of the seabed.

The preceding part has established that the parallel system is fair from the perspective of legitimacy. This section discusses whether the distribution of land in reserve is just in the sense that this process does or does not result in a widening of equity between developing and developed states. This system undoubtedly places a burden upon a license applicant, as the applicant is required under their contract to prospect an area, or two areas of equal commercial value but will only be able to exploit (upon the settling of the rules by the ISA) half of the area they have explored. However, whilst a burden is placed upon the applicant, the license provides significant benefit to the applicant, whilst also ensuring a mutual benefit to the state party that is allocated the land in reserve. Whilst an argument of unfairness may be present, its prospects of succeeding in persuading anyone who may listen are low, in this scenario, the reasonable conclusion is that the burden placed upon the applicant is not unjust.

In conclusion, legitimacy and distributive justice are present in the parallel system, and, as such it is reasonable to say that the parallel system is fair when looked at in its’ entirety. Further, the division of resources is in the interest of mankind.

Now that the processes behind the implementation of the CHM principle have been discussed relating to deep-sea mining, this article will proceed to examining whether the processes may be suitable to be applied to the development of international law relating to celestial body exploitation.

Exploitation of Celestial Bodies

As discussed in section I, the Moon Agreement, in its present form contains a number of provisions that would allow for the creation of a body that is not dissimilar to the International Seabed Authority. Through the creation of an International Celestial Mining Authority, the body would be able to implement protocols suited to the exploitation of celestial bodies. To preface this section of the article, the author acknowledges that the exploitation of celestial resources presents significant scientific and economic challenges. Additionally, it is possible that the resources exploited on celestial bodies into the future will not be returned to the Earth, but instead be used for the purpose of ‘setting up’ bases on the Moon and other celestial bodies. However, the concept is worthy of discussion in advance of it becoming technically feasible. This would avoid or mitigate the controversy surrounding the long delay in the introduction of regulation due to disagreement on exploitation of the seabed. Section 3.4 of this article exists to provide suggestions on how the Moon Agreement may be reformed to firstly encourage global participation and how the processes behind the ISA may be used to advance the interests of mankind.

To provide suggestions for the amendment of the Moon Agreement it must first be understood why reform is necessary. The primary reason that the Moon Agreement is ineffective in regulating celestial body exploitation is that it has low participation globally, and, as of September 2021, it has not been ratified by any state that engages in self-launched human spaceflight (USA, the Russian Federation, or the People’s Republic of China). This has led to the agreement being widely regarded as the least impactful piece of Space law.[41] Low Participation in the Agreement stems from, among other things uncertainty surrounding the implementation of the agreement and CHM Principle. [42]

Another issue is clashing ideologies over commercial interests. This was illustrated recently when former US President, Donald Trump signed an Executive order in 2020 which emphasised that the United States does not view outer space as a global commons.[43] The interpretation from commercial actors is of course different to that of state parties, for example the COO of an energy company argued, when discussing the interest of human civilisation that:

Benefits come in many ways, it doesn’t necessarily come in sharing of immediate financial gain, if for example we are able to build off-world infrastructure and large space based solar power stations for powering the earth, creating desalinised water for billions of people, these are massive benefits for civilisation.[44]

The above further demonstrates that there exists a number of different, and often conflicting interpretations of what is in the interest of ‘mankind’. Whilst the above quote is not necessarily incorrect, it stems from the perspective of a commercial actor. The interests of mankind cannot be summarised through the perspective of one company or one state, rather, the interests of mankind must be a combination of collaboration and compromise from all interested parties. The best approach to achieve that idea is through community consultation and transparency as the relevant agencies develop substantive processes to abide by. The United Nations may achieve a fair system through consultation and transparency that will allow for the creation of an authority similar to that of the International Seabed Authority. This is allowed for currently through Article 11(7) of the Agreement and would serve as an oversight body that may allow for a parallel system to exist.

The Parallel System as it exists will not be able to be transferred across easily to apply to celestial exploitation as a whole. Currently only three states have human spaceflight-capable programs, the United States, the Russian Federation, and the People’s Republic of China. Whilst this is the case in 2021, commercial actors, such as SpaceX, Virgin Galactic, and Blue Origins are all likely to have significant spacefaring capabilities within the decade. SpaceX is already ahead of the competition and successfully won a contract with the United States government to create lunar-capable landers.[45] Additionally, the Chinese and Russian governments announced that they have signed an agreement to establish a lunar research base in cooperation. Until such time that other states, both developing or developed become capable of entering into space independent from pre-existing space farers, any celestial exploitation will be inevitably economically unequitable. As such, what must occur is to ensure that the Moon, or other Celestial bodies are used for scientific and peaceful purposes so that it may benefit mankind as a whole. Rather than the export of resources back to Earth, the interest of mankind into the future may be that precious elements in these bodies are used to allow for the further exploration of bodies far from Earth, thus allowing for the potential advancement of the species. Evidently, the Space Race to set up ‘territory’ on the Moon has begun again. Whilst the term ‘celestial body’ refers to any Moon, planet, or satellite (asteroid) other than the Earth, it is reasonable to say that the Moon and perhaps Mars (when referring to the Moon, please consider this as including Mars from herein) will become the first bodies in space to be exploited, and or settled. Exploitation on the Moon could very well be feasible within the next few decades and as such establishing regulation is worthwhile so as to avoid the tardiness associated with the International Seabed Authority and seabed exploitation.

The size and proximity of the Moon in comparison to other bodies may enable for a parallel system to be implemented in a manner that is within the interest of mankind, whilst the implementation on other celestial bodies presents significant issues due to the variety of different challenges, they present in reaching, dividing, and enforcing any regulation that exists. Further, a process where significant resources must be expended in reaching, establishing a base of operations, and exploiting resources from a body must not be so overregulated that it may repel the advancement of science, economic development, and the exploration of outer space. This article argues that the parallel system may be applied to the Moon, but not, as it stands, applied to other celestial bodies. In the case of the Moon, clear regulation surrounding it is vastly important because of the Moon’s proximity to the Earth, and as such means that exploitation and settlement are but a matter of time. It is more than likely that the exploitation of resources on the Moon will only be suitable for usage on the Moon, and as a staging base to further explore the solar system until such time that the logistical challenges of bringing resources back to the Earth are solved. With present and near future technology, the purpose of the CHM principle must be to ensure that the Moon is used for peaceful and scientific purposes. Presently, the concern surrounding the principle should not be the division of economic gain, because, as it is and will be into the foreseeable future, it is unlikely that exploitation will become profitable beyond government contracts. As such, the primary way of achieving the interests of mankind presently is to ensure that celestial bodies are used for peaceful purposes, and that any scientific discoveries (that are not subject to intellectual property rights) are shared across mankind thus encouraging global cooperation. One way to provide for the CHM principle in practise may be that an Authority of sorts is set up to allow for the subdivision of land within the Moon and allocated on a case-by-case basis. In order to maintain the interest of mankind in doing so and avoiding discriminatory practises that may exist as a result of sovereign loyalties, the authority must not have any direct affiliation with a single state, or group of states. The Authority must ensure that its’ decision making is transparent and subject to appeals where wrongful actions may exist. In practise, the agencies that already exist for similar purposes allow, to some extent, the replication of the provisions that are found within the UNCLOS, reinforced by existing principles found within the Antarctic Treaty and Moon Agreement requiring that the ‘area’ is used for peaceful purposes. Ultimately, the interest of mankind is peaceful scientific cooperation as it expands into Space, irrespective of economic division, this may be reached through a transparent, and understanding decision making process to amend the Moon Agreement to allow for these changes. This would remove the economic burdens that would be placed on developed nations to encourage participation in the Moon Agreement.

IV – AUSTRALIA, THE MOON AGREEMENT AND THE ARTEMIS ACCORDS

This section discusses the interests of Australia relating to the Moon Agreement and the more recent Artemis Accords. The Accords are an American-led effort to return humans to the Moon by 2024 with the ultimate goal of expanding outer space exploration. Relevant to this article, section 10 of the Accords concerns the exploitation and ownership of outer space resources. This section discusses how the Accords and Moon Agreement contradict one another and how that may affect Australia’s ability to navigate into celestial body exploitation. It will conclude by suggesting how Australia may navigate these challenges in a way that remains in line with its interests whilst maintaining Australia’s obligations to international law.

The Artemis Accords

The Artemis Accords (“the Accords”) is a multilateral agreement stemming from the United States’ interests in the use of outer space. It particularly relates to the exploration and use of the Moon, Mars, comets and asteroids. Many of the provisions found within the Accords mirror those found in the Moon Agreement, however, there are also a number of provisions located within that are completely inconsistent with the Moon Agreement. Particularly, section 10 relates to the exploitation of ‘space resources’ stating that the ‘extraction of space resources does not inherently constitute national appropriation.’[46] Article II of the OST states that Outer space... is not subject to national appropriation by claim of sovereignty..[47] Effectively, the treaty concerns itself with claims of sovereignty and does not expressly reference the extraction or exploitation of space resource. The United States is a party to the OST but not the Moon Agreement, as such, Section 10 only takes into account Article II of the OST but not the Moon Agreement’s Article 11. As a result of the United States’ position, section 10 is directly in contravention of article 11 of the Moon Agreement, this Article states that “neither the surface... nor any... natural resources in place shall become property of any state.. non-governmental entity or natural person... “ [48] and as such provides for significant issues for Australia going forward.

Australia’s signature to the Artemis Accords is to be expected. Following World War II, Australia has cooperated with the United States government in almost all aspects of foreign policy. In relation to Space, Australia first cooperated with the United States in 1960 through its signature of a bilateral agreement pertaining to space vehicle tracking. This agreement eventually led to the establishment of NASA’s first deep-tracking station outside of the United States in South Australia. [49] Australia continues to act on behalf of NASA in monitoring its’ property. Australia’s interests both economically and miliarily have over the past 75 years often aligned with that of the United States. Further examples outside of the Space Sector clearly demonstrate Australia’s interest in cooperating with the United states, for example. The existence of multilateral alliances such as ANZUS,[50] the QUAD,[51] FVEY,[52] and more recently the establishment of AUKUS[53] are all evidence of Australia’s interest in the United States, additionally, Australia’s signing on to the Artemis Accords clearly demonstrates Australia’s contemporary interest in the United States’ space industry.

The Moon Agreement and Australia

The preceeding sections discussed the important provisions found in the Moon Agreement relating to the common heritage of mankind principle. This section will provide suggestions in relation to Australia’s interests. In order to provide reasonable suggestions on what Australia ought to do relating to the Moon Agreement, the motives behind signing the Agreement in the first instance must be established. Australia did not become a party to the Moon Agreement until 1986, despite the Agreement entering into force in 1984. Despite this considerable delay in signature, it appears that there was little to no meaningful consideration by the then Australian government of the agreement beyond its provisions relating to nuclear disarmament.

Dr Storr of the Law Faculty of the University of Technology Sydney has discussed the reasoning behind Australia’s signature in considerable detail. Much of Storr’s points stem from her analysis of the archival record of cabinet delibrations relating to the agreement. Of relevance to this article is the narrow-minded view the Hawke government seemingly took in their approach to nuclear disarmament.[54] The decision to sign the Agreement came from a time of increasing pressure surrounding nuclear policy in Australia. As a proponent of both nuclear-energy and non-proliferation, Hawke’s government was forced to tread a difficult line. Despite an initial hardline approach from the Labor party, banning uranium mining altogether, there was an eventual loosening of the rules allowing for uranium mining to take off once again. This led to a split in the labor-left and the rise of the Nuclear Disarmament Party. In 1984, the NDP became a threat to the stability of the Hawke government, at this stage the labor government decided to explore all options relating to nuclear disarmament, a move that eventually resulted in the accession of Australia to the Moon Agreement where an electoral loss appeared increasingly likely.

Storr effectively argues that the implications of the common heritage for mankind principle in relation to outerspace resources were overlooked, yet, lead to Australia remaining formally bound to perform its obligations in good faith.[55] It does not appear that the Hawke government had any significant interest in the oversight of outer space resource by an international body. Whilst these obligations, and by proxy, inconsistencies currently continue to exist, it is in Australia’s interests to figure out a way to move forward. To further elaborate, Section 10 of the Accords is in direct conflict with Article 11 and subsections (3) and (5)[56] due to the contradictory views relating to the ownership of natural resources in outer space, Article 11 seeks to ban the extraction of resources until an authority is created whilst section 10 of the Accords seeks to allow for and encourage the extraction and exploitation of space resources. [57]

A Way Forward

Australia’s position on the the Moon Agreement and Artemis Accords is yet to be defined by any agency, department or government official.. This article provides suggestions as to why Australia needs to find a way to navigate this path in the near future, and how it may achieve this. Throughout this section, this article has established that Australia’s interests have historically, and will continue to remain in line for the foreseable future with the United States of America and the United Kingdom among others. It has also established that Australia’s consideration of the legal implications of the Moon Agreement in relation to asteroid mining was poor at best, and almost entirely done for the furtherance of electoral success in the 1980s. Australia’s priorities have shifted away from Nuclear disarmament. Whilst resolving the conflicting provisions found within the Agreement and the Accords may not be a necessity in the coming years, Australia will need to clarify its position at some stage. It is better that it resolves its position now so that it may better plan, and implement statutory provisions and administrative processes in advance of it becoming an issue of contention when Australia reaches the Moon.

There is one practical approach to Australia’s predicament and one idealistic approach. In an ideal world, in line with the interest of mankind, the Moon Agreement would be amended to prescribe what was suggested in section 3, that being the removal of reference to economic inequity in Article 11 of the Agreement. This would hopefully encourage participation on a global scale including parties to the Artemis Accord, without conflict occuring. However, the likelihood of this occuring, especially in the current political climate because of the geopolitical tensions such as the relationship between the US and China or Australia and China. In practice, the only reasonable approach Australia can take is to choose to leave the Moon Agreement or Accords. However, noting Australia’s interest in lining up with the interests of US, it should take the steps to remove itself from being bound by the Moon Agreement any longer.

Exiting the Agreement

In order to lawfully withdraw from the Agreement Australia must abide by the Articles found within the Vienna Convention on the Law of Treaties (1969) (“the Vienna Convention”). Whilst it is not presently necessary to withdraw from the Agreement, it is important to note the steps required to do so when it does become necessary. If the goals of the Accords in reaching, and establishing a base on the Moon by 2024 are realised, then it will be within Australia’s interests to resolve the conflicting relationship between the Accords and the Agreement. Articles 42 to 45 and 54 to 64 of the Vienna Convention provide a number of grounds to denounce or withdraw from an Agreement or Treaty. Articles 65 through to 72 then specify the relevant procedures that must be taken to exit from an Agreement and the consequences of doing so. Relevant to Australia’s potential withdrawal from the Agreement is Article 54, where a party may withdraw from an Agreement so long as it is:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.[58]

Paragraph (a) of Article 54 allows for the withdrawal from a treaty so long as it confirms with the relevant provisions, conveniently, the Agreement provides for, under Article 20 that:

Any State Party to this Agreement may give notice of its withdrawal from the Agreement one year after its entry into force by written notification to the Secretary-General of the United Nations. Such withdrawal shall take effect one year from the date of receipt of this notification.

The Agreement entered into force in July 1984, with Australia depositing the Agreement in 7 July 1986. As such, the first part of the Article, requiring a member to remain a party until one year after it was written into force is satisfied. Whilst Australia should begin to take steps to withdraw from the Moon Agreement, there will clearly need to be substantial consultation with the space industry, academics, State Parties and parties to the Accords.

4.5 Australia’s Place in the Accords

Australia’s economic and strategic interests align with the United States, however, whilst US support exists for Australia, Australia should aim to exercise independence in Space rather than be solely reliant upon the US and other parties to the Accords for support entering, exploring, and exploiting Space and its resources. As such, it is important that Australia continues to develop and fund the space sector domestically. Fortunately, Australia’s space sector has been growing drastically over the past decade. With the recent (2018) founding of the Australian Space Agency, an agency which will coordinate domestic space Activities for Australia, Australia’s domestic space capability has begun to grow. Further, launch licences have been granted to two non-governmental organisations within Australia, demonstrating the re-emergence of Australia’s interests in becoming a hub for space activities.[59] Australia regulates domestic space industry through a number of statutory pieces, most significant is the Space (Launches and Returns) Act 2018, this provides licenses and requirements for the following:

• launching a space object from Australia

• returning a space object to Australia

• launching a space object overseas (for Australian nationals with an ownership interest)

• returning a space object overseas (for Australian nationals with an ownership interest)

• operating a launch facility in Australia[60]

Australia’s licencing system is in depth and covers many Space Activities, it does currently provide for licencing requirements of celestial body exploitation. This is currently in line with the Moon Agreement, however, upon Australia’s withdrawal, or change of interests, the legislation will need to be amended to provide for the lawfulness of celestial body exploitation and ownership under Australia’s domestic law. It is worth noting that there is currently nothing stopping Australia legislating upon the exploitation of celestial resources, however, ownership of said resources would be contrary to the Moon Agreement.

Australia’s Space Capabilities in 2021

Australia’s space industry is currently small; however it is growing at a rate that significantly outstrips its international peers, the United Kingdom’s space sector from 2016-2017 grew approximately 3%, whilst Canada, a nation most comparable to Australia had a growth of only 1%. Australia vastly outstrips these states with a growth of 17% per year since 2016. As of 2019, Australia’s space sector was worth approximately $4.8 billion dollars, or 0.25% of its total GDP for the financial year of 2018-2019. For comparison, whilst the financial amount is small on the face of it, Australia’s overall economic rate of growth for the same period was 4.9%. Whilst Australia’s space sector is growing fast, it still has considerable lengths to go before it can legitimately be considered a competitor in the Space Sector. [61] Despite its small size, Australia has encouraged foreign investment and has granted launch licences to a number of companies, one such example is that of a Taiwanese space company called ‘TiSpace’ which it granted a licence to in August of 2021.[62] This is in conjunction with another company that was granted a launch facility permit named ‘Southern Launch’ which is an Australian owned and operated company. [63] Additionally, Australian universities launched a number of satellites from the United States in January of 2021, these were called the YUSAT and the IDEASSat CubeSat. [64] Australia certainly has a place in the space sector, and while its size in the sector is yet to be determined, the field is receiving investment from the government and private industry and is something for Australians to be excited about. In this context, it is timely for the government to continue to explore its position in relation to celestial exploitation.

V CONCLUSION

The law of space is an immensely complex area and like much of the international law surrounding the common heritage principle, a mess of competing interests and ideologies that has resulted in a useless Agreement. The Moon Agreement is at best aspirational and at its worst downright burdensome through Article 11 for any of the few states that are signatories. Ultimately, whilst the purpose of the Moon Agreement is important, it is a failure because of its vague terms, lack of participation and overall burden on participating states.

This article has provided suggestions as to how the Moon Agreement may be amended to encourage participation in it. These suggestions are to strip the Agreement of reference to economic inequity and inequality, to change the rules surrounding extraction so that they reflect the Outer Space Treaty, and to ensure that the common heritage of mankind principle exists within the Agreement to encourage the use of the Moon and other Celestial bodies for the purpose of human prosperity through peaceful and scientific advancement.

The exploitation of natural resources on the Moon likely will not create profit within the lifetime of the author of this article and certainly not within the lifetime of the creators of the Agreement. The Moon Agreement was clearly mistaken in its statement that the exploitation of the Moon was “about to become feasible.”[65] Almost 40 years later there has been no such exploitation occurring in space and as such the proactive nature of the Agreement is more burdensome in its application of Article 11 than it has or ever will be beneficial.[66] To reach the ‘final frontier’ is an accomplishment that only a few states have achieved, it is economically detrimental, to reach space is incredibly expensive and currently not profitable, moreover, this obligation to set up an authority to divide the benefits of resources has resulted in less than 10% of United Nations members agreeing to be bound by it. As discussed earlier, no state that is independently capable of launching and exploiting space is a party to it.

The Agreement as it stands is arguably an ineffective piece of international law, however, with amendments and clarification as to what the interest of mankind translates to it may amount to a more significant treaty. Firstly, as mentioned above the division of ‘economic benefit’ is presently not a viable solution as there is and likely will not be any potential for economic benefit from resource extraction in the foreseeable future due to technological constraints, as such, any obligation requiring the division of resources, or revenue stands only as a barrier to humankind’s advancement. The article argues that the economic barrier is the core reason so few states have decided to become bound by the Agreement. Secondly, upon the removal of the economic barrier, all parties should proceed to in the creation of an Implementation Agreement that provides for an authority that could act similarly to the ISA. This would serve as an oversight board where mining activities are recorded for transparency. Rather than claiming sovereignty over land, the authority should be granted the right to inspect and lease land to corporations or states to the extent that they can exploit it, but the claim to the land remains with the authority that represents the interests of mankind. The Authority would also have a duty to ensure that the Moon and other celestial bodies were not weaponised and were used exclusively for scientific and peaceful purposes.

Ultimately the above recommendations are idealistic and may face practical barriers and difficulties. Implementation will be difficult because of the splintered, albeit unsurprising divergence of the United States’ Artemis Accords, and the People’s Republic of China and the Russian Federation’s “International Lunar Research Station” it is unlikely that these three superpowers will cooperate in the Author’s lifetime to the extent required to encourage them to agree to be bound by the Moon Agreement because of the extreme geopolitical tensions that presently exist between the states. Still, these amendments are worthwhile discussing as other middle powers may be encouraged to cooperate in the creation of an authority. With the creation of the authority, the removal of economic division and the clarification of the CHM principle, multilateral agreements like the Accords are not inherently in contravention of the Agreement. If the United States, China, or Russia do not sign the Agreement, they may continue to abide by the interests of mankind through the inception of complementary treaties and agreements in place, perhaps the interests of mankind can continue through science and peace.

Section IV discussed Australia’s position between the Artemis Accords and the Moon Agreement. It ultimately argued that Australia should withdraw itself from the Moon Agreement. Australia’s position is unique, no other state is a party to both pieces of law and as such there is no clear path Australia should take based on precedent. However, the Agreement, as illustrated throughout the article is a failure and as it exists currently places a burden on all of its member states. The Artemis Accords however, whilst primarily in the interest of the United States allows Australia to benefit from the success of the US. Australia’s interests have aligned with the United States since the 20th century and continue to do so in 2021 and likely will into the future. Australia does not need to immediately withdraw from the Agreement, it has time to consider its position going forward and present an argument to other Agreement member states to amend the Agreement, were Australia to argue for the amendments that have been presented in section 3, it would be in a position to abide by obligations found in both agreements.

Australia has not yet defined its place in space and the following decades are imperative to decide what path it is to take. Australia launched its first space object in 1967, becoming the third nation ever to design and launch a satellite to orbit the Earth. Its’ history is long but has stagnated considerably up until recently with the grant of a number of launch facility permits and launch licences to Australian companies. The developments of the country’s space capabilities are exciting but without necessary funding and government support it may stagnate once again. Australia can become a leading nation in outer space with a combination of foreign cooperation and domestic innovation. The ultimate recommendation for this article is that Australia must consider its position in international law and make a decision within the next decade, further, Australia’s government and commercial actors should continue to fund and support Australia’s growth in space. Australia is a mineral rich, economically wealthy and is in a geographically advantageous position to launch rockets into space. Additionally, it is a world-leading state in relation to mining on Earth, this combination of advantages present a fact that whilst a middle power, Australia and citizens stand to benefit significantly from space and its resources.

***


* William Gallagher is a Canberra Law School graduate. Sic itur ad astra (Thus, one journeys to the stars) is voiced in Virgil, Aeneid IX 64[1] by Apollo to Aeneas's young son Iulus

1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967), art 1.

[2] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984).

[3] The Artemis Accords: Principles For Cooperation In The Civil Exploration And Use Of The Moon, Mars, Comets, And Asteroids For Peaceful Purposes, signed 13 October 2020, entered into force 13 October 2020, section 10.

[4] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984). Australia acceded to this Agreement in 1986.

[5] K Wong "Rumsfeld still opposes Law of Sea Treaty." The Washington Times, 14 June 2012.

[6] A. Pardo, The common Heritage; Selected Papers on Oceans and World Order 1967–1974 (Malta University Press, 1975), 176

[7] A. Pardo and C. Christol, ‘The common Interest: Tension Between the Whole of the Parts’ in MacDonald and Johnston (eds) The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (1983) 273

[8] Article 140, UNCLOS; see also Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Article 11(7)(d).

[9] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Article 11.

[10] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Article 11; see also Articles 136 – 149.

[11] Please see Article 87 of UNCLOS III.

[12] J A Jiru, Comment, Star Wars and Space Malls: When the Paint Chips Off a Treaty's Golden Handcuffs, 42 S. TEX. L. Rev. 155, 161.

[13] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Preamble.

[14] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Art 136.

[15] The Deep Seabed Hard Mineral Resources Act: 30 U.S.C. §§ 1441 – 1444 (1980); states such as Germany, France, the UK, Japan and the then Soviet Union also developed their own law, most of these states excluding the USA have since ratified the convention.

[16] E Guntrip (2003). The common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed? Melbourne Journal of International Law, 376 4(2) 392

[17] M Harry, ‘The Deep Seabed: The common Heritage of Mankind or Arena for Unilateral Exploitation?’ (1992) 40 Naval Law Review 207, 22

[18] Ibid.

[19] C Joyner, The Concept of the common Heritage of Mankind in International Law’ (1999) 13 Emory International Law Review 615, 620.

[20] C R Buxton, P’roperty in Outer Space: The common Heritage of Mankind Principle vs. the First in Time, First in Right, Rule of Property’ (2004) 69 Journal of Air Law & Com. 689, 692 (2004).

[21] M E. Schwind, Open Stars: An Examination of the United States Push to Privatize International Telecommunications Satellites, 10 Suffolk Transnatl L. Rev. 93, 97(1986).

[22] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Art 140 (2); a number of additional articles exist pertaining to the principle. Please see, Articles 137 (non-appropriation principle) 139 (state responsibility), 141 (use for peaceful purposes), 143 (scientific research for the benefit of mankind), 145 (environmental protection), 148 (promotion of cooperation, particularly developing states) and articles 156-185 (management of the area through the ISA, discussed in section 2) for further reference.

[23] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994, entered into force 16 November 1994.

[24] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Art 137.

[25] The Antarctic Treaty, opened for signature 1 December 1959 (entered into force 23 June 1961) Articles I-III.

[26] The Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991 (entered into force 14 January 1998) Art 7.

[27] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Article 11 (1) & (5).

[28] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994, entered into force 16 November 1994, Annex, ss 1-9.

18.; United Nations Convention on the Law of the Sea, opened for signature 10 December 198[2], UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Art 156 & 157; Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994 (entered into force 16 November 1994) Annex, s 1.

[29] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) Art 163; Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994 (entered into force 16 November 1994) Annex, s 1(4).

[30] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994, entered into force 16 November 1994, Annex, s 2.

[31] UNCLOS, art.145

[32] C G Brown (2018). “Mining at 2,500 Fathoms under the Sea: Thoughts on an Emerging Regulatory Framework.” Ocean Science Journal 287 53(2) 288.

[33] International Seabed Authority “Exploration Contracts” Our Work (viewed 29 October 2021) (webpage) < https://www.isa.org.jm/exploration-contracts>

[34] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994, entered into force 16 November 1994, Annex, s 1(15).

[35] H Dennis (May 30, 2009). "Thomas Franck, Who Advised Countries on Law, Dies at 77". The New York Times.

[36] T M Franck, Fairness in International Law and Institutions (1995), at 8.

[37] T M Franck, Fairness in International Law and Institutions (1995), at 18; see also J.Rawls, A Theory of Justice (rev.edn, 1999), at 266.

[38] Ibid at 83.

[39] I Scobbie (2002) “Tom Franck’s Fairness” Edinburgh Journal of International Law 13(4) 909, 910.

[40] See for example: Responses to the HLAP Public Consultation: https://www.isa.org.jm/responses-hlap-public-consultation; and “Government of Australia’s comments on the International Seabed Authority’s report on the draft framework for the regulation of exploitation activities in the Area.” https://isa.org.jm/files/austgovt.pdf

[41] J S Koch (2018). "Institutional Framework for the Province of all Mankind: Lessons from the International Seabed Authority for the Governance of Commercial Space Mining." Astropolitics 16(1): 18.

[42] Ibid 7; Clashing ideologies and conflicting interests over commercial endeavours also led to the failure of the agreement to encourage participation.

[43] The Executive Order on “Encouraging International Support for the Recovery and Use of Space Resources”. Sec 1.

[44] JS Koch (2018). "Institutional Framework for the Province of all Mankind: Lessons from the International Seabed Authority for the Governance of Commercial Space Mining." Astropolitics 16(1): 15; from his personal correspondence with Shackelton Energy Company, COO Jim Keravala.

[45] C Davenport (2021) ”Elon Musk’s SpaceX wins contract to develop spacecraft to land astronauts on the moon” Washington Post (Webpage) <https://www.washingtonpost.com/technology/2021/04/16/nasa-lunar-lander-contract-spacex/>; other companies such as Boeing have also won contracts with the US government.

[46] The Artemis Accords: Principles For Cooperation In The Civil Exploration And Use Of The Moon, Mars, Comets, And Asteroids For Peaceful Purposes, signed 13 October 2020, entered into force 13 October 2020, section 10.

[47] Article II – Outer Space Treaty.

[48] An explanation of Article 11 can be found in section I, part 2.6 of this article.

[49] Tronchetti and Liu (2021) “Australia Between the Moon Agreement and the Artemis Accords.” Australian Institute of International Affairs; see also Tronchetti and Liu ‘Australia’s signing of the Artemis Accords: a positive development or a controversial choice?’ (2021) 75(3) Australian Journal of International Affairs, 243.

[50] Australia, New Zealand, United States Security Treaty

[51] The QUAD refers to the Quadrilateral Security Dialogue, this is a strategic dialogue between Australia, the United States, Japan and India.

[52] Five Eyes (FVEY) is an Intelligence sharing alliance comprising Australia, The United States, New Zealand, Canada, and the United Kingdom.

[53] This is a trilateral agreement and alliance comprising Australia, the United States and the United Kingdom. It was announced on 15 September 2021 and encourages Australia’s development into nuclear powered submarines.

[54] C Storr (2021) “Why did Australia sign the Moon Treaty?” Lowy Institute (Webpage) https://www.lowyinstitute.org/the-interpreter/why-did-australia-sign-moon-treaty

[55] C Storr (2021) “Why did Australia sign the Moon Treaty?” Lowy Institute (Webpage) https://www.lowyinstitute.org/the-interpreter/why-did-australia-sign-moon-treaty

[56] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Art 11(3)(5).

[57] The Artemis Accords: Principles For Cooperation In The Civil Exploration And Use Of The Moon, Mars, Comets, And Asteroids For Peaceful Purposes, signed 13 October 2020, entered into force 13 October 2020, section 10(1).

[58] Vienna Convention on the Law of Treaties (1969) Vienna, Austria, opened for signature 23 May 1969, UNTS 1155 (entered into force 27 January 1980) Art 54.

[59] C. Porter MP & D Tehan MP “Commercial rocket launch permit granted for South Australia” Australian Government, Department of Industry, Science and Technology (2021)

https://www.minister.industry.gov.au/ministers/porter/media-releases/commercial-rocket-launch-permit-granted-south-australia; see also: Australian Space Agency “Notice of Minister decisions about space activities” Australian Government, Department of Industry, Science and Technology (accessed 11 October 2021). https://www.industry.gov.au/regulations-and-standards/regulating-australian-space-activities/notice-of-minister-decisions-about-space-activities

[60] Part 3 ss 10-46Y Space (Launches and Returns) Act 2018 (CTH); see also: Space (Launches and Returns) (General) Rules 2019; Space (Launches and Returns)(High Power Rocket) Rules 2019; and Space (Launches and Returns)(Insurance) Rules 2019.

[61] Alpha Beta, The economic contribution of Australia’s space sector in 2018-19 (Report, February 2021) 19-20 <https://www.industry.gov.au/sites/default/files/2021-02/the-economic-contribution-of-australias-space-sector-in-2018-19.pdf >.

[62] C. Porter MP & D Tehan MP “Commercial rocket launch permit granted for South Australia” Australian Government, Department of Industry, Science and Technology (2021)

<https://www.minister.industry.gov.au/ministers/porter/media-releases/commercial-rocket-launch-permit-granted-south-australia>

[63] Ibid.

[64] A. Alamalhodaei “Taiwan Innovative Space will conduct a test launch of its Hapith I rocket in Australia later this year” TechCrunch (Webpage, 24 August 2021) <https://techcrunch.com/2021/08/23/taiwan-innovative-space-will-conduct-a-test-launch-of-its-hapith-i-rocket-in-australia-later-this-year/>

[65] Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, United States of America, opened for signature 5 December 1979, UNTS 1363 (entered into force 11 July 1984), Article 11 (5).

[66] Article 11 concerns the extraction of resources from outer space among other things.


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