Space. “There is a consensus to move towards exploitation of space resources”

Picture of Cécile Gaubert’s law firm

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

Of course, the Artemis program has ambitious objectives, most notably the return of humans to the moon by 2025. But are the treaties signed by France under the 1967 Space Treaty one of the most important texts in space law? The latter, in fact, stipulates that “space, including the moon and other universes, cannot be the object of national rights by declaring sovereignty or by means of use or occupation.” However, the Artemis agreements provide the possibility of limiting “security zones” to avoid “harmful interference” by third parties, especially to protect the exploitation of resources.

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

Can we say that the treaty and the Artemis program go against existing laws in space exploration?

The answer is complex, because it is yes or no. The Artemis Accord has two parts which may conflict with the 1967 Space Act and which raises questions. It’s about creating a safety net and exploiting resources. Article 2 of the 1967 treaty specifies that space, including the moon and other planets, cannot be subject to national rights by declaration of sovereignty, means of use, occupation or any other means. This article outlines the basic principle of the absence of expansion of sovereignty over space or celestial objects.

However, Article 7 of the Artemis Treaties outlines the possibility of establishing a safety zone on the moon “to avoid harmful interference”. So the question is whether the establishment of this safety zone is equivalent to the national allocation of the lunar portion.

But since the provisions of the 1967 treaty were so vague, it opened the door to free interpretation of the states that went to explore the moon, didn’t they?

Exactly. The problem is there is no clear answer. And the Americans are clearly saying that this is not an advantage, that there is no sovereignty over this protected area, that it is not an occupation, and so the Artemis treaties respect the terms of the treaty. This is an interpretation made by all the signatories to the treaty, including the United States and France, which ratified the 1967 treaty and is therefore obliged to respect its terms.

So if men set foot on the moon, is there a risk of witnessing the misuse of lunar resources?

The question is primarily related to certain gases and specific lunar resources that, after treatment, are used as energy and allow to be transferred to satellites, probes, rovers or others. In addition to the 1967 treaty, we have the 1979 lunar treaty, which also prohibits the exploitation of space resources. It has, however, received very little signature, even less ratification, not even by France.

In the United States, an amendment to the law was drafted in 2015 to specifically approve the exploitation of space resources. Luxembourg, too, two years later, then the United Arab Emirates (the three countries that signed the Artemis Treaty, editor note). So there is still a consensus today to move towards the legalization and exploitation of space resources.

In France, in the texts, we have nothing but our commitment internationally.

Can we speak of a legal vacuum in space exploration, of treaties in effect that are ultimately very vague and that allow for a highly thematic interpretation of texts?

Yes, so the Americans jumped on the bandwagon. Because one of the upcoming activities is very clearly the exploitation of space resources. With all these different rules and regulations – the Moon Treaty, the 1967 Treaty, the Artemis Treaty … -, we can now say that the activity is legal. And even if it is not legal, what will be the fine? And who can implement them? The United Nations? I don’t see the UN imposing sanctions on the United States because American companies are exploiting space resources … I highly doubt that we will one day get a binding international document on this.

So in space, every country will eventually be able to do what it wants …

Yes, and we can draw parallels with the ruins of space, which is a real thing today. We have more inactive satellites, launcher material that stays in orbit and causes damage, re-entering the atmosphere. That’s problematic. Internationally, there are only “guidelines” (or recommendations), but no binding documents. States take appropriate measures to avoid debris and conflict.

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