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Should lunar governance for future exploration and other activities be done in a bottom-up or top-down way? (credit: NASA)

From the Truman Proclamation to the Artemis Accords: steps toward establishing a bottom-up framework for governance in space


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Humanity stands at the doorway of an astounding societal transformation. While many people worldwide pass time attending to urgent personal matters or frivolous entertainments, nation states and private parties harbor serious plans to launch missions to the Moon, Mars, and beyond to establish permanent outposts and communities. Such extraterrestrial activity offers vast potential to unleash “infinite opportunity, boundless freedom, and unfettered creativity.”[1]

By cultivating a governance in space that evolves from the ground up and is based on collaborative partnerships, best practices, transparency, openness of entry, environmental protection, and other principles, humanity could vastly improve its material well-being in space and on Earth.[2] Moreover, adaptable ground-up governance based on these principles would foster a system in which commercial space entities and persons could thrive as they benefit from being good actors.[3]

Now is the time to lay down such a framework for rational extraterrestrial governance before international advancements outstrip good intentions and we are left with the same conflicts we are trying to escape.

Beyond material gain, however, access to boundless space resources like solar energy, minerals, and volatiles could also have a profound positive impact on the collective psyche of humanity. Such activity would offer an exciting avenue away from historical grievances and conflicts over terrestrial territories. However, without careful governance planning, this enormous material and psychological potential may remain unrealized. Even worse, competition over choice resource sites on the Moon could lead to balkanization, with terrestrial geopolitical conflicts extended into space.

The mere technological ability to launch uncrewed and crewed machines into space “does not guarantee a future of sustainable, equitable, and economical space activity.”[4] A bottom-up governance framework, participatory and evolutive, must be established to induce such a future. Now is the time to lay down such a framework for rational extraterrestrial governance before international advancements outstrip good intentions and we are left with the same conflicts we are trying to escape.

Top-down versus bottom-up approach to international governance[5]

The long-standing intellectual struggle taking place in the international arena over the governance of areas beyond national jurisdiction has suddenly intensified. Historically, the region in contention has been the terrestrial seabed, but this controversy is now shifting to outer space.

The disagreement dates to the 1960s. In general terms, there are two contending groups, though not every person or organization fits neatly into either camp. Nevertheless, assessing the main contenders and their values will help to frame and clarify recent developments, announcements, and publications by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), China, the United States and like-minded countries, the Hague International Space Resources Governance Working Group, the Vancouver Outer Space Institute, the Lunar Development Cooperative Working Group, and other stakeholders and opinionmakers.

Space stakeholders are locked in an intense international battle of ideas about extraterrestrial governance. One side consists of opinionmakers who favor a top-down international regime or regulatory authority that mandates rules perceived to be equitable for the utilization and sharing of planetary surfaces and space resources. This camp tends to see the Moon Agreement[6] in a favorable light and often holds up the International Seabed Authority (ISA), from Part XI of UN Convention on the Law of the Sea (UNCLOS),[7] as the model for governance in space.

Members of this group began discussions about UNCLOS and the Moon Agreement in the late 1960s, and these discussions continued throughout the 1970s, resulting in the 1979 Moon Agreement and the establishment of ISA in 1982, coming into force as part of UNCLOS in 1994. To this day, no major space power is a party to the Moon Agreement, and no commercial mining of seabed minerals has taken place under the authority of ISA—only seafloor sampling.[8]

The other side consists mainly of opinionmakers who favor governance frameworks that evolve bottom-up from the practices of persons, national and international organizations, private companies, economic sectors, and national governments. Such practices, if widely emulated and not challenged, sometimes become recognized by jurists as customary international law (CIL) and eventually become codified by international agreements and treaties.

Practices, in this context, consist of not only customary actions or activities by state and non-state actors, but also non-binding soft law, such as national and international guidelines, agreements, principles, standards, proclamations, declarations, executive orders, and court rulings, as well as national legislation and the regulations and activities that flow from that legislation. This side sees the evolution upward from practices into international law as a much more efficient and effective way to achieve transparent, equitable, participatory governance that can adapt to changing circumstances or technologies. They also note that a treaty, once negotiated and adopted, becomes a static entity, and is almost impossible to amend, thus running the risk of becoming quickly outdated or irrelevant by advances in technology or dramatic changes in societal habits.[9]

The trajectory for international practices evolving into customary international law can take either a long time or a remarkably short time.

It is helpful to think of this bottom-up approach in terms of “subsidiarity,” an organizing principle that posits that legal frameworks or rulemaking ought to be handled by or evolve from the lowest or least centralized level, rather than by a central authority.[10] Most people in this group—with some notable exceptions—come from common law countries, examples of which include the United States and United Kingdom. It is generally easier for them to see the law as evolving ground up from case-by-case adjudication.

Members of the ground-up camp are also distrustful of Article XI of the Moon Agreement and will often cite the difference between the Moon Agreement’s declaration that lunar “resources are the common heritage of mankind,” or that lunar resources belong to all humanity collectively as a whole, versus the Outer Space Treaty (OST) Article I’s declaration that outer space is the “province of all mankind,” i.e., a destination for humanity’s “exploration and use,” including the use of space resources. In this regard, it is not a coincidence that Article 136 in UNCLOS Part XI also proclaims that the indicated seabed resources are the “common heritage of mankind,” the minerals of which can “only be alienated in accordance with… the rules, regulations, and procedures of the Authority.”

In general, sections within the Moon Agreement’s Art. XI are also an issue for the bottom-up camp because they repeatedly call for a “regime” to “govern” the exploitation of the natural resources of the Moon. In particular, Art. XI calls for an international regime to carry out “equitable sharing” of benefits derived from lunar resources and sounds a lot like ISA’s regime of forced sharing.

Slow versus fast trajectory to customary international law

The trajectory for international practices evolving into customary international law (CIL) to be eventually codified by international treaty or convention can take either a long time or a remarkably short time.

An example of a slow trajectory to treaty is the case of marine salvage practices dating back to the ancient Phoenician, Greek, and Roman civilizations. These classical maritime practices evolved into customary international law and continued as such until they were codified and expanded by the 1989 International Convention on Salvage, which entered into force in 1996.[11]

A striking example of a fast trajectory from practices through CIL to codification is the train of events set off by President Truman’s 1945 executive order proclaiming that the resources on the continental shelf contiguous to the United States belonged exclusively to the country (the Truman Proclamation.) No nation state objected and, in fact, within five years 30 coastal states had made similar proclamations, some claiming a 200-nautical-mile (370-kilometer) exclusive economic zone (EEZ). By 1950, a country’s exclusive resources right to its continental shelf was being recognized as CIL in juridical circles and subsequently codified by the 1958 Convention on the Continental Shelf. UNCLOS later upgraded the concept and codified a country’s right to a 200-nautical-mile (370-kilometer) EEZ in 1982.[12]

In summary, the top-down ISA model currently promoted by the first group took about 30 years to develop and come into force and has yet to produce resource mining of the seabed, whereas the bottom-up practices set off by the Truman Proclamation led to CIL within five years and the first codification within 13 years. Today, resource exploitation of EEZs worldwide triggered by the Truman Proclamation contributes to millions of jobs and many billions of dollars annually, while commercial resource exploitation under the jurisdiction and control of ISA is non-existent. From these examples, one can currently discern in UNCLOS the result of both top-down and bottom-up governance processes.

Recent moves by stakeholders concerning utilization of space resources and governance

Multilateral discussions about the utilization of space resources has inevitably led to space governance issues, and an important forum for such discussions is the COPUOS Legal Subcommittee (LSC). For instance, the LSC’s agenda item 15 is a “General exchange of views on potential legal models for activities in exploration, exploitation, and utilization of space resources.” Pursuant to this agenda item, during the 2019 LSC session, several delegates extolled the alleged virtues of the ISA as a model for space governance.[13] Also, last year’s main COPUOS session called for informal consultations with COPUOS members on the topic of “space resource governance approaches.”[14]

The intensifying discussions about space resources (linked to governance) at COPUOS have led to several recent proclamations by spacefaring nations.

When considering practices for codification through a bottom-up evolutionary process, one must distinguish from faulty practices versus best practices.

In November 2019, China proposed establishing a Moon-based special economic zone.[15] Subsequently, President Trump issued Executive Order 13914 in April 2020 reaffirming US support for the 1967 Outer Space Treaty, while specifically refuting the 1979 Moon Agreement. The order also called on the US Secretary of State to seek out like-minded states with which to negotiate joint statements, bilateral and multilateral agreements, and other agreements regarding the safe and sustainable use of space resources.[16] The following May, NASA proposed the Artemis Accords, a framework of principles for U.S. agreements with like-minded countries to carry out the mining of lunar water and minerals.[17] NASA followed up in October with an announcement that seven countries signed on to a revised version of the Artemis Accords. The first sentence of the revised Accords declares that its purpose is to “establish a common vision via a set of principles, guidelines, and best practices in carrying out activities in outer space…[to]…increase the safety of operations, reduce uncertainty, and promote sustainable and beneficial use of space for all humankind.”[18]

The United States and Luxembourg have both passed domestic laws enabling space resource utilization and have signed a cooperative agreement related to space commerce. Other like-minded states such as Japan, the United Arab Emirates, India, Canada, Australia (despite having ratified the Moon Agreement), and eventually even China (despite its rivalry with the United States) may follow suit.[19] Whatever comes out of these proclamations and agreements by nation states, it is clear that the race to utilize deep space resources is underway and will not wait for a top-down, decades-long international treaty to authorize and regulate their activities.

The position of the Vancouver Outer Space Institute flies in the face of this reality. The Institute, comprised mostly of academics, produced 25 recommendations on space mining. These call for “multilateral negotiations on an international regime for space mining,” deemed to include the activation of Article 18 of the Moon Agreement. Even more problematic, the negotiating states are urged to consider “the creation of international governance mechanisms, taking into account models or analogies from other areas such as deep seabed mining,” and the “establishment of a mandatory benefits sharing mechanism.”[20] There is much more that can be said about the recommendations, both positive and negative. Yet, with its references to the Moon Agreement, deep seabed mining as a model, and with a “mandatory benefits sharing mechanism,” the Vancouver Outer Space Institute appears to favor the top-down, international treaty-first group, contradicted by the train of recent events.

A rational path: evolving a bottom-up governance framework based on best practices

This discussion has thus far ignored the elephant in the room. When considering practices leading to CIL and then to codification through a bottom-up evolutionary process, one must distinguish from faulty practices versus best practices, like those that evolved from marine salvage customs. Indeed, the careless exploitation of EEZs throughout the world touched off by the Truman Proclamation has also led to oil spills that have harmed not only Earth’s environment but the fishing and tourist industries as well. Moreover, careless government and commercial practices have also led to a space environment contaminated with over 8,000 tons of debris in Earth orbit and even waste on the Moon’s surface.

One may consequently argue that the top-down, international treaty-first process can better safeguard a given area’s environment, whether on Earth or in outer space. In the case of the ISA model, however, this claim cannot be verified because commercial mining has yet to take place under ISA jurisdiction and control. Moreover, there is no reason why future governance frameworks in space that evolve from the bottom up cannot be based on best practices by government and private parties. There is, for instance, an idea conceived by Michael Castle-Miller and promoted by the Lunar Development Cooperative Working Group for establishing a lunar development cooperative, designed so that the participants receive more value from the cooperative than it costs them, and this value can only be preserved through best practices that are environmentally sensitive.[21]

Another example of an environmentally sensitive, bottom-up evolutionary framework comes from The Hague International Space Resources Governance Working Group, which in 2019 produced its “Building blocks for the development of an international framework on space resource activities.” Guided by the principle of “adaptive governance,” the Hague Building Blocks call for space resource activities to be incrementally addressed at the appropriate time based on contemporary technology and practices. Notably, they recommend multiple measures to avoid contaminating the space environment during space resource utilization activities.[22]

Ultimately, the static, authoritarian, decades-to-reach model for space governance espoused by the top-down, treaty-first group will be no match for the dynamic, evolutionary, participatory, adaptive-governance approach already begun transparently by bottom-up contenders.

Adaptive governance implies that any effective and sustainable governance framework be able to evolve to address changing circumstances. However, beyond evolutionary adaptability, other founding principles are needed for effective governance in space. NASA’s latest version of its Artemis Accords is subtitled, “Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful .”[23] With the usual caveat that the “devil is in the details,” the ten core principles and three provisions listed by the Accords, when added to the Principle of Evolutionary Adaptability, appear to form a solid basis for negotiating international agreements.[24] Although the Artemis Accords currently only call for “bilateral agreements” with NASA, two of its authors have left the door open for multilateral agreements based on Accord principles.[25] Moreover, it is clear from the revised version of the Artemis Accords that the signatories intend to contribute to “multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resource.”[26] [emphasis by the authors]

Conclusion

An international struggle is occurring over the issue of resource utilization and commerce and related governance in space. The principal contenders are a top-down, treaty-first space governance group versus a bottom-up space governance group with strong ties to commercial industry. Both are exercising great efforts to persuade other space stakeholders that their pathway to equitable space resource utilization and sharing is best.

Members of the bottom-up group, nation states (like the signers of the Artemis Accords) and various civil groups are carrying out activities that are on track to bring transparent, participatory, non-authoritarian governance to space eventually. NASA’s recent announcement that seven nations have signed on to a revised version of the Artemis Accords has recently boosted the bottom-up space government effort.[27] Ultimately, the static, authoritarian, decades-to-reach model for space governance espoused by the top-down, treaty-first group will be no match for the dynamic, evolutionary, participatory, adaptive-governance approach already begun transparently by bottom-up contenders.

Endnotes

  1. The Beyond Earth Institute, “Policy Recommendations to Accelerate the Establishment of Communities in Space,” June 2020 BE Report.
  2. NASA, “The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes,” 13 October 2020.
  3. Castle-Miller, Michael with co-authors Alfred Anzaldúa and Hoyt Davidson, “The Lunar Development Cooperative: A new idea for enabling lunar settlement,” The Space Review, 27 April 2020.
  4. The Beyond Earth Institute, 2020.
  5. The central theme of this article is taken from Anzaldúa, Alfred, “Intellectual Conflict Over Governance in Space,” Ad Astra, 2020-3.
  6. See Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
  7. See: United Nations Convention on the Law of the Sea
  8. Mucha, Jacek and Monika Wasilewska-Błaszczyk, “Estimation Accuracy and Classification of Polymetallic Nodule Resources Based on Classical Sampling Supported by Seafloor Photography,” Minerals, 14 March 2020.
  9. Ian A. Christensen and Christopher D. Johnson, “Putting the White House executive order on space resources in an international context,” The Space Review, 27 April 2020.
  10. Ibid.
  11. International Convention on Salvage, 1989
  12. Scharf, Michael P., Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments, Chapter 5: “The Truman Proclamation on the Continental Shelf,” pgs. 107 – 122, Cambridge University Press, 2013.
  13. Witnessed by the author.
  14. Christensen and Johnson, 2020.
  15. See: China Proposes Establishing Moon-Based Special Economic Zone
  16. See: Executive Order on Encouraging International Support for the Recovery and Use of Space Resources
  17. See: Principles for a Safe, Peaceful, and Prosperous Future
  18. NASA, 2020.
  19. Christensen and Johnson, 2020
  20. “Vancouver Recommendations on Space Mining,” 20 April 2020.
  21. Castle-Miller et al., 2020.
  22. The Hague International Space Resources Governance Working Group, 12 November 2019.
  23. NASA, 2020.
  24. The ten core Artemis Accord principles are 1) Peaceful Purposes, 2) Transparency, 3) Interoperability [utilization of international standards], 4) Emergency Assistance, 5) Registration of Space Objects, 6) Release of Scientific Data, 7) Protecting Outer Space Heritage, 8) Space Resources [the right to extract and utilize], 9) Deconfliction of Activities, 10) [Avoiding] Orbital Debris.
  25. Foust, Jeff, “What’s in a name when it comes to an ‘accord’?” The Space Review, 13 July 2020.
  26. See section 10 point 4 of “The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes,” 13 October 2020.
  27. NASA, 2020.

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