Once again, I attended the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) as part of the delegation of the Space Generation Advisory Council (SGAC). In this post I will discuss the discussions under the space resource agenda item, which will hopefully be a useful exercise, I don’t go into too much detail but try to cover the main points of discussion. Space resources were discussed under agenda item 14: general exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources. Further information (including audio recordings of the discussions – for reference 5 April AM and PM and 8 April AM) are available on the UNOOSA website.
Greek and Belgian Working Paper
Greece and Belgium submitted a working paper proposing the establishment of a working group for the development of an international regime for the utilization and exploitation of space resources. There was some discussion of the contents of the working paper and it is worth reading but most of the discussion focused on the concept of a working group itself rather than the specifics of the working paper. The working paper can be found via the link in the footnotes. [1]
Working Group?
One of the main discussions that has happened during this session is whether the Legal Subcommittee should set a working group to discuss space resources. There does seem to be broad support for the notion but perhaps not broadly enough for the proposal to be adopted (at this moment nothing has been decided.) Two potential hurdles are the fact that the US is not that keen on the idea, though it should be noted that they didn’t object out of hand, in fact they said that if it is set up it needs to be time limited and given a clear restricted task. The Russians however want a broad mandate for the working group, as they feel there are many questions that need to be investigated and the working group needs the time, scope and ability to deal with those. They also want the working group to consider a binding legal instrument creating a specific framework for the regulation of space resource activities. Something the US doesn’t support as they feel that there isn’t presently a need for an international regime and that the existing legal framework is sufficient to regulating those space resource missions that are currently being contemplated. This will presumably be decided during the drafting of the report at the end of this week, but I would guess there won’t be a working group set up this year.
The Hague Group
The work of The Hague Space Resources Governance Working Group, a multi-stakeholder group of which I am a member, was referenced by several delegations during discussions. Most of this was positive praise for the Draft Building Blocks[2] (again accessible via the link below) with a few even suggesting that UNCOPUOS should use the draft building blocks as a foundation or starting point for any discussions on a legal instrument or working group. However, several states took issue with this, as they have done in the past, for a few reasons, either because they question the legitimacy of the group or because they feel that UNCOPUOS has not been ‘properly informed’. The Hague Working Group is due to complete its work this year. I expect that either formally or informally the Building Blocks will inform the work of UNCOPUOS on space resources, indeed they already have.
Acceptance
One of the noticeable developments since 2016 is that there seems to be broad acceptance of the legitimacy of space resource activities. During the first few discussions in the wake of the US space resources law during the 2016 session there were objections to space resource activities as an activity voiced, however, the debate has shifted to the basis for authorisation and regulation. Some States feel that there would have to be an international regime, others feel that there should be, while still others cite Article 11 of the Moon Agreement as the way forward, and not all of them are party to the Moon Agreement, but more on that below.
Moon Agreement: Not Dead
One of the surprising things was the numerous positive references to the Moon Agreement, specifically Article 11,[3] granted, most of these were from States who are party to the Moon Agreement but Germany and Russia also indicated that the Moon Agreement was perhaps the best way forward. Russia even went so far as to suggest that we may need to take a fresh view of the Moon Agreement and perhaps think about issuing a call, via UNCOPUOS, for States to accede to the Moon Agreement (it is worth noting that this does sort of happen as calls are made for the universalization of the UN space treaties of which the Moon Agreement is the fifth.)
The Moon Agreement is usually considered a failed treaty given its low uptake (circa 18 parties compared to the Outer Space Treaty’s 107+) but it is a valid treaty of international law and were a sizeable number of States, particularly if they included spacefaring nations such as Russia, to take up the treaty then that would certainly change the legal landscape regarding space resources. However, that would raise the threat of giving rise to diverging regimes between those party to the Moon Agreement and those who aren’t.
Final Thoughts
This year’s discussions have been interesting, and it is good to see how the discussions are maturing. As mentioned above I think one of the biggest developments is a clear acceptance of the legitimacy of space resource activities as an activity. There are many details yet to be worked out, but as I argue in an upcoming article, there is no rush, we have plenty of time to work out how to regulate space resource activities.
[1]http://www.unoosa.org/res/oosadoc/data/documents/2019/aac_105c_2l/aac_105c_2l_311_0_html/AC105_C2_L311E.pdf