CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ HOLES IN THE HULL already existing usage and customs, e.g., fishing on the high seas. Contrast that with today’s challenge and it is clear that the inverse is occurring. In order to utilize space resources, law must exist to allow the commencement of the activity, whereas the usage and existing customs of the sea was used to tailor the law into what we know it as today. 49 The Antarctic Treaty is a useful comparison in that the treaty established an area with the intent to create a peaceful place that was available to all for scientific purposes while not making it an international lightning rod at the same time. 50 By preventing any type of singular regime from taking hold while fostering the cooperative scientific and peaceful purposes of the drafters, 51 the treaty has prevented any type of resource extraction from occurring. It is doubtful that an all-out ban on celestial body resource extraction is in the future, which in turn lessens the analogy between space resources and those in Antarctica. Today, compared to when the OST was created, China has a far larger presence both technologically and financially to shape the course of these discussions. Malcolm Davis, a former official at Australia’s defense department who now researches space policy at the Australian Strategic Policy Institute in Canberra stated, “The biggest risk is you have two opposite set of rules. You could have a Chinese company on the Moon in the 2030s claiming territory with a resource on it, in the same way the Chinese have claimed the entire South China Sea.” 52 Unfortunately, space, once a sector that brought about cooperation between superpowers, now reflects terrestrial conflicts. Russia and China have blamed the U.S. and allies for the tension in Ukraine and Taiwan and recently Chinese state media has accused the U.S. of trying to establish a Space NATO. 53 This is surely a result of the creation of the Artemis Accords shortly following President Trump’s Executive Order 13914. The Artemis Program is a NASA-led program, with international partners, aimed at establishing a long term, self-sustainable habitat on the Moon, and later on Mars. 54 These accords are likened to the Apollo space program of the 1960’s in their scope and ambition, this time focusing on commercialization as well as scientific purposes. 55 Among others, the Artemis Accords specifically speak about increased governance of civil actors in utilizing space (Section 1), and, directly relating to this topic, the peacefully using of outer space and regarding space resources. 56 In 2020, the United States launched an initiative for a legal framework for the Artemis Program. The Accords reaffirm commitment to the 1967 Outer Space Treaty and much of its provisions follow accepted principles of peaceful purposes, transparency, and commitment to scientific and technological cooperation and interoperability. However, the provision of

49 Supra note 1, p. 38. 50 The United Nations Antarctic Treaty Preamble (Dec. 1, 1959). 51 id. Arts. 1-3 (Dec. 1, 1959).

52 EINHORN, B. China, US Are Racing to Make Billions from Mining the Moon’s Minerals, Bloomberg Europe Edition (May 17, 2022). available at https://www.bloomberg.com/news/features/2022-05-17/china-us-are-in a-space-race-to-make-billions-from-mining-the-moon-s-minerals. 53 id. 54 TEPPER, E. The Big Bang of Space Governance: Towards Polycentric Governance of Space Activities, 54 N.Y.U. J. Int’l L. & Pol. 485, 518 (2022). 55 The Artemis Plan, NASA’s Lunar Exploration Program Overview p.8 (September 2020) (available at https:// www.nasa.gov/sites/default/files/atoms/files/artemis_plan-20200921.pdf ). 56 Artemis Accords, § 10.

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