Four key points regarding Saudi Arabia’s withdrawal from the Moon Agreement
by Michael J. Listner
|The move is not entirely unexpected given Saudi Arabia’s interest in developing its space sector and its participation in the Artemis Accords.
The Moon Agreement has 22 parties who have either signed or ratified/acceded, with Armenia being the latest when it acceded on January 19, 2018. The following chart is reproduced from the United Nations Treaty Collection website, which is available here:
|19 Jan 2018 (a)
|7 Jul 1986 (a)
|21 May 1980
|11 Jun 1984
|29 Jun 2004 (a)
|3 Jan 1980
|12 Nov 1981
|29 Jan 1980
|20 Nov 1980
|18 Jan 1982
|11 Jan 2001 (a)
|28 Apr 2014 (a)
|12 Apr 2006 (a)
|11 Oct 1991 (a)
|25 Jul 1980
|21 Jan 1993
|27 Jan 1981
|17 Feb 1983
|27 Feb 1986 (a)
|23 Jun 1981
|23 Nov 2005
|23 Apr 1980
|26 May 1981
|17 Apr 1980
|18 Jul 2012 (a)
|29 Feb 2012 (a)
|1 Jun 1981
|9 Nov 1981
|Venezuela (Bolivarian Republic of)
|3 Nov 2016 (a)
Notably, the US, the Soviet Union/Russian Federation, and the Peoples Republic of China did not become a party. The absence of these three States crippled the Moon Agreement even when it reached the necessary number of ratifications to come into force.
Despite this lack of overt political capacity to enforce the Moon Agreement, the question of whether the Moon Agreement could gain efficacy through customary international law has been a concern not so much through the actions of States who are parties to the Moon Agreement but rather the silence and inaction of non-parties to expressly denounce the Moon Agreement. This silence arguably creates a vacuum for the penumbra of customary international law to fill.
After the concept of space resources was broached by the US in 2015, the Hague Space Resource Working Group was established and to create the Building Blocks for the Development of an International Framework on Space Resource Activity, which draws on the Moon Agreement and its “common heritage of all mankind” theme. The Working Group adopted the Building Blocks on November 9, 2019. Subsequent to the release of the Building Blocks, several of the Moon Agreement States began to assert the legitimacy of the accord to push back on the US effort to legitimize space resources and potentially bolster the Moon Agreement through customary international law and create a norm of customary international law.
The Trump Administration ended the US silence on the Moon Agreement and halted the creep of customary international law when it issued Executive Order 13914 on April 6, 2020, which expressly denounced the Moon Agreement and reasserted the legitimacy of space resources. This executive order met with resistance from the Russian Federation in a statement from Roscosmos. However, the statement, which is distinctly a propaganda and lawfare maneuver intended for political effect, did not directly support the Moon Agreement, which means its impact on customary international law was negligible if existent at all.
|Saudi Arabia is well cognizant the legal paradigm of space resources is accelerating and outpacing the top-down approach of the Moon Agreement.
Further resistance to the executive order manifested itself in the Vancouver Recommendations for Space Mining sponsored by the Outer Space Institute and endorsed by members of NGOs, academia, and retired diplomats. The Vancouver Recommendations supported the creation of a top-down mechanism to govern space resources and even explicitly called for certain provisions of the Moon Agreement to be enacted. However, the initiative appears to have had little effect to dilute space resources, to include supporting the Moon Agreement as customary international law.
Saudi Arabia acceded to the Moon Agreement on July 18, 2012. It is uncertain whether Saudi Arabia had a specific state interest acceding to the Moon Agreement for other than political optics. There is the possibility Saudi Arabia, whose economy is based on its domestic mineral resources, made a strategic move to ensure it would have a seat at the table should the issue of space property rights be raised and with it the harvesting of extraterrestrial minerals. The concept of space resources was not in play at the time, but the discussion of space property rights was gaining steam, which makes it highly probable Saudi Arabia felt that it should hedge its bets and become a party to all the outer space treaties, including an ineffective Moon Agreement.
Why did Saudi Arabia invoke the withdrawal provision of the Moon Agreement after less than 11 years as a party? It is a precept of international law that a state who is party to a treaty may denounce or withdraw from a treaty, in accordance with a treaty’s terms, and under certain other limited conditions indicating consent of the parties. The Moon Agreement, however, expressly allows for withdrawal upon one-year notice. Invoking the withdrawal provision in the Moon Agreement might have created unfavorable political optics for Saudi Arabia, even though it was a party for only a relatively short time. However, the real politick of the direction of the jurisprudence of outer space and the growing legitimacy and momentum of space resources is not lost on Saudi Arabia, which may have led to it decision.
Consider these key points:
1. Saudi Arabia recognizes the bottom-up approach of space resources will eclipse top-down measures like the Moon Agreement.
Saudi Arabia is well cognizant the legal paradigm of space resources is accelerating and outpacing the top-down approach of the Moon Agreement. Saudi Arabia is fast-tracking its geopolitical standing in outer space and part of that effort required a cold, hard look at the Moon Agreement and whether the political window-dressing of remaining party to it would enhance its standing in the international community. Certainly, the baked-in inefficacy of the Moon Agreement, coupled with the growing acceptance of space resources, persuaded Saudi Arabia withdrawal would be in its state interest.
2. Saudi Arabia recognizes its membership with the Artemis Accords is inconsistent with the top-down, legally-binding approach of the Moon Agreement.
Saudi Arabia became the 21st member of the Artemis Accords on July 14, 2022. The Artemis Accords fall outside of the United Nations and consist of non-binding principals that build a framework upon the Outer Space Treaty. The non-binding nature of the Artemis Accords paves the way for the principals within to be further elaborated and become customary international law as both governmental and non-governmental activities manifest and evolve. Moreover, unlike the Moon Agreement, there is no stipulation in the Artemis Accords for an international body to regulate and disperse space resources similar to the International Seabed Authority found in Article 146-1919 of UNCLOS. Overall, the Artemis Accords is a more fluid approach than the Moon Agreement and has a greater likelihood of being adopted and implemented. Saudi Arabia recognizes this and understands its continued support for the Moon Agreement is not congruent with its support of the Artemis Accords and therefore not in its state interest to remain a party.
3. Saudi Arabia understands continued support of the Moon Agreement affects its future ability to participate in space resource activity and influence international space law.
Saudi Arabia recognizes its continued support of the Moon Agreement would detriment its ability to influence and shape international space law, especially with space resources. Space resources is the antithesis of the approach of the Moon Agreement and, with the former gaining international support, Saudi Arabia understands its continued support of a declining international agreement will prevent it from embracing the concept of space resources. This would affect the ability of Saudi Arabia to not only be a participant in the development of the law surrounding space resources but also limit its ability to receive the economic benefit from space resources. In other words, as long as Saudi Arabia embraces the Moon Agreement, the legally binding nature of the accord and the obligations within would prevent Saudi Arabia from establishing its own domestic space law adopting the concept of space resources.
4. Saudi Arabia is aware continued support of the Moon Agreement would erode its future economic and political standing in the Middle East.
Saudi Arabia has long been the most influential power in the Middle East in no small part because of its economic standing as the largest producer of oil. However, Saudi Arabia is cognizant its future does not rest solely on its oil production. The advent of outer space, in particular space resources and the technology derived, is where its future lies. Congruent with economics in the Middle East is political power in the region. The United Arab Emirates, which is one of the first States after the US to adopt space resources as part of its domestic space law, is setting itself up to challenge Saudi Arabia as the economic leader in the region and, by extension, political influencer in the Middle East. Specifically, the UAE is positioning itself to become the economic hub and clearinghouse of space resource activity in the Middle East, which will place them in the position of becoming not only the future economic leader in the Middle East but a power broker as well. Saudi Arabia is cognizant its continued support of the Moon Agreement, which would legally and politically preclude it from embracing space resources, would facilitate the UAE’s prominence and threaten Saudi Arabia’s economic standing in the Middle East and by extension its political power in the region.
What is the aftermath of withdrawal by Saudi Arabia? Surely, there was political pressure for Saudi Arabia during the notice period to remain within the Moon Agreement, but for its part Saudi Arabia does not appear to have been dissuaded from following through with withdrawal over the course of 2023.
|The growing acceptance of space resources and the Artemis Accords further cast light on the shadows of customary international law as a means of enforcement of the Moon Agreement, making that path to enforcement improbable at best.
For the Moon Agreement, Saudi Arabia’s withdrawal will only intensify the scrutiny over the accord and support the skepticism of its efficacy. Moreover, Saudi Arabia’s withdrawal may encourage other parties to withdraw. Australia and Mexico, who are both members of the Artemis Accords, might see Saudi Arabia’s withdrawal as an opportunity and a political off-ramp to withdraw their affiliation with the Moon Agreement. Either or both of these States withdrawing would not affect the Moon Agreement as international law, but it would further weaken an already insecure treaty and further erode any possibility the Moon Agreement could be enforced as customary international law.
For Saudi Arabia, withdrawal from the Moon Agreement will free it diplomatically and politically to embrace space resources as a legitimate interpretation of the Outer Space Treaty. This will also give Saudi Arabia the political cover to not only implement a domestic space law but also include a provision creating a right for non-governmentals under its jurisdiction to acquire space resources. However, it is notable Saudi Arabia continued to be bound by the Moon Agreement during the notice period. This means implementing a space resource provision prior to January 5, 2024, could have been construed as a technical breach of Saudi Arabia’s obligations under the Moon Agreement. Regardless, it is unlikely any political sanction would have been leveled other than finger-wagging by other parties of the Moon Agreement for a breach prior to the withdrawal date.
Does Saudi Arabia’s withdrawal signal a demise for the Moon Agreement? Efforts to bolster the Moon Agreement have been negligible and no new parties appear to be on the horizon since Armenia acceded in 2018. The growing acceptance of space resources and the Artemis Accords further cast light on the shadows of customary international law as a means of enforcement of the Moon Agreement, making that path to enforcement improbable at best.
The wild card is the Russian Federation, which is critical of non-governmental space activities in general and space resources in particular. If the Russian Federation decided to play spoiler and accede to or recognize the Moon Agreement as customary international law, it could throw into question the Moon Agreement’s demise. However, the Russian Federation’s reputation is declining in the international community with its continued hostilities in Ukraine, and it is debatable whether its endorsement of the Moon Agreement would be effective or even welcome.
Overall, the Moon Agreement will almost certainly retain its status as international law while being eclipsed by the growing acceptance of space resources as not only a customary interpretation of the Outer Space Treaty but also establishing itself as a customary norm of international law. For its part, Saudi Arabia’s withdrawal from the Moon Agreement portends a less-than-certain future for the accord while painting a more certain potential for space resources as the path of international space law.
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