CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ HOLES IN THE HULL Artemis Accords to which Luxembourg, Japan, and the UAE were some of original parties. 28 Those accords will be discussed in more detail below. The International Framework The debate over ownership of space resources tends to fall into two groups: those who believe that ownership should be on a first come first serve basis, and those who believe that the resources belong to everyone for the betterment of the global community as a whole, and therefore, must benefit even those who do not have the ability to participate. 29 The text of the OST is intended to exclude claims by prescription as well as to dispel any idea that celestial bodies are res nullius waiting to be claimed by the firstcomer. 30 If celestial bodies are not res nullius , then what are they? Professor Malcom Shaw of the University of Leicester is confident that outer space belongs to the category of res communis , another example of which is the high seas, 31 and so is incapable of being reduced to sovereign control. 32 Like the OST, the Convention on the Law of the Sea (LOS) speaks directly to non appropriation by sovereign nations. 33 However, unlike the LOC, the OST seems to have been created with a primary purpose of preventing the militarization of space. This is evidenced in its Article 4 regarding the prohibition of placing nuclear weapons in space or on celestial bodies. Prior to the creation of the OST, the U.S. and the Soviet Union made it clear to the UN that they would not place these weapons of mass destruction outside of Earth. 34 When the U.S. Senate was debating the ratification of the OST, President Johnson expressed the desire to ratify. His reasoning was that by expanding peace, the OST reduced conflict and lessened the chance of war breaking out in space. 35 Assigning of outer space to res communis does not however necessarily imply that all celestial bodies are included in it. A logical line in the sand would be to exclude bodies below a certain size. In regard to the non-appropriation element of Article 2 of the OST, if the purpose was to prevent a single nation from being able to establish some type of military foothold, then excluding certain bodies too small 36 to support such an installation would not frustrate the purpose of the treaty while allowing the commercial sector to use these smaller bodies to grow a new industry. On a side (and slightly frustrating) note, there appear to be some ambiguities between different versions of the text depending on the language it has been translated into. According to professor Jinyuan Su of Xi’an Jiaotong University School of Law, there appears to be an inconsistency between the Chinese text of the Outer Space Treaty on the one hand, and the English, French, Russian, 28 The Artemis Accords, Principles for Cooperation in the Civil Exploration and Use of The Moon, Mars, Comets, and Asteroids for Peaceful Purposes, Oct. 13 2020. 29 MARTINEZ, K. L. Lost in Space: An Exploration of the Current Gaps in Space Law, 11 Seattle J. Tech. Env’t & Innovation L. 322, 338 (2021). 30 Supra note 1, p. 34. 31 United Nations Convention on the Law of the Sea art. 136 (Dec. 10, 1982). 32 SHAW, Malcolm N. International Law (7th edn, Cambridge University Press 2014) 355. 33 Supra note 26, art. 137. 34 UN GAOR 1 st Comm., 18 th Sess., 1244 th mtg., UN Doc. A/5656/GA. 1844, and A/5656/GA. 1908 (1963). 35 Message of the President of the United States Transmitting the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space , 113 CONG. REC. 2781-82 (1967), 56 DEP’T STATE BULL. 386–87 (1967). 36 HOFMANN, M., BERGAMASCO, F., Space resources activities from the perspective of sustainability: legal aspects , Global Sustainability 3 (2020), e4, 1–7. https://doi.org/ 10.1017/sus.2019.27.

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