Read part one of this post here.

Tension between the Outer Space Treaty and the Artemis Accords

The primary bone of contention is the principle of Common Heritage of Mankind (CHM) and equitable sharing of resources which the US objects and claims as not being envisioned by the OST, as it is silent on the commercial exploitation of lunar resources. The OST also prohibits the appropriation of moon and other celestial bodies by the claim of sovereignty. A cursory reading of Sections 9, 10 and 11 of the Artemis Accords posits the inconsistencies with the OST. The preservation of space heritage, extraction of resources and establishment of safety zones that the Accords assert do not inherently stem from the OST and need to be deeply examined.

Manufacturing Customary International Law (CIL)

Generally, a treaty is interpreted in good faith and with ordinary meaning in light of its object and purpose. However, together with the context, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions or any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation need to be taken into account to arrive at a conclusion (Art.31 VCLT). The Accords could be construed as a subsequent agreement and/or a practice which has enabled a US dominated interpretation of the OST that neglects the principle of CHM as opposed to the Moon Agreement. When there are no binding obligations with regards to the commercial extraction and exploitation of space minerals, such a ‘political commitment’ would favor the development of the CIL.

State practice and opinio juris are the meta-rules for the creation of CIL (Kammerhofer). The signing of the Accords is essentially an act of the executive and state practice includes executive actions. The binding aspect (opinio juris) is the psychological element that emanates from the free will of states accepted as principles through usage or through expression in conventions so as to regulate relationship among each other (Lotus case). Although, the Accords deem themselves as non-binding they are enabling the psychological element and it is evident as they have been receiving huge support from a number of spacefaring and non-spacefaring states equally. This tacit arrangement could bring to life a rule of CIL which favors the US centric interpretation of the OST on commercial exploitation and extraction of space resources.

Emergence of ‘Instant’ Custom in International law

Although traditionally both the corpus and the animus are considered constitutive elements of a custom to emerge, the possibility of an alternative view was not left unexplored. The psychological element (opinio juris) could manifest through acceptance, recognition or acquiescence by a state. In that case the binding force of the rule not only rests on consent but also on the principle of estoppel. Thus, an emergence of an ‘instant’ custom is plausible. From this point of view, there is no reason as to why a custom in international law may not develop over a short period of time (Bin Cheng). But on the other hand, the extent of operability of the estoppel hasn’t been explored on a great scale. A formal application of this premise, could make Artemis Accords CIL if the existing ‘partners’ of the United States ‘positivize’ their new common opinio juris.

India’s quandary

As the first state to land on the Moon’s south pole, India has secured its much-deserved seat in the club of spacefaring nations. Being an emerging space power, India has been expanding its space sector through its FDI policy and National Space Policies with a keen eye for commercialization of space sector.

As a signatory to the Moon Agreement, India must refrain from acts that defeat the object and purpose of the treaty (Art.18 VCLT). Although, India has joined the Artemis Accords, it is yet to clarify its position with respect to the Moon Agreement. India’s clarification could bring a significant rearrangement of relationships in the framework as the consistency aspect between the Moon Agreement and Artemis is disputed. For instance, Saudi Arabia upon signing the Artemis has withdrawn from the Moon Agreement without stating any reasons and Australia which is a Party to both the Moon Agreement and the Artemis has maintained that its actions are in consonance with the Moon Agreement and its international obligations. Such action of states can only be justified if it facilitates multilateral approach to the outer space regime where the interests of all  states are taken into consideration, rather than a fragmented and single state dominated development.

It is high time that India understood its dual position, as an emerging space power and as a developing nation among the cream of developed space faring nations. This gives India a leverage to negotiate for the rest of the developing world especially the non-space faring nations. Thus, India should seek to resolve its quandary by ratifying the Moon Agreement and spearheading a regime for the commercialization of space with due consideration for the rights of developing world and non-spacefaring nations.

India should ensure in emphasizing ‘equitable sharing of benefits’ and ‘international co-operation’ as envisaged by the Moon Agreement and tap on the potential of  the Agreement which has been much ahead of its time in establishing  an International Regime to govern the exploitation of the natural resources of the Moon, but had deferred the operation  considering the feasibility. An international regime like the International Seabed Authority could be conceived to balance the commercial interests of spacefaring states and non-state actors while affirming the principle of CHM so as to ensure sustainability.

India can resort to Article 17 of the Moon Agreement and propose an amendment and lobby for a developing world centric multilateral framework rather than accepting a US dominated regime. Thus, it is India’s turn to make a case for the developing world, which largely consists of emerging space powers and non-space faring nations in the 67^th Committee on the Peaceful Uses of Outer Space (COPUOS), which has largely remained the fortress of US, Russia or off-late China.

Jayamani Kalyanasundaram is a Graduate student pursuing Master of laws in International law from South Asian University, New Delhi. Her research interests cut across various spheres of international law particularly international space law, international human rights law and TWAIL.

Read more about this and related topics in the Asian Journal of International Law.