CYIL vol. 13 (2022)

CHARLES BIRD CYIL 13 ȍ2022Ȏ the Accords relating to the exploitation of space resources raised objections, as part of a long standing debate on the issue as has been discussed above. Significantly, the Artemis Accords were prepared, negotiated, and adopted outside of UN COPUOS and outside of a multilateral context. This may explain the accusation that the U.S. is attempting to establish a U.S.-centric regime. 57 Further, the future elaboration of the principles of these Accords will most likely be solely driven by the U.S. and will certainly not be a multilateral effort. These Accords demonstrate the growth and creation of instruments that fall outside the traditional procedural framework. The Artemis Accords have the potential to create a novel system space governance that will apply and be recognized by a select group of states. 58 Such as the Seabed Act discussed above. I would argue that since there is no specific convention regarding space resources, nor existing custom, that this might create an opportunity for a new custom to take root sometime in the future, which could set a basis of a source of international law. 59 Section 10 of the Accords specifically states that mining these resources does not constitute appropriation as described in the OST and both contracts and other instruments regarding space resources use the OST as the interpretive document in that area. 60 This in turn could possibly neuter the use of other legal instruments like the Moon Agreement and, more importantly, the OST in interpreting appropriation and ownership of resources found in celestial bodies or possibly the bodies themselves. Future Steps The Hague International Space Resources Governance Working Group, which was established by the United Nations Committee for the Peaceful Uses of outer Space, 61 suggested a road map to an international framework regarding space resource activities. Although, it came to the conclusion that it was not feasible to establish an international framework for the regulation of space resource activities, 62 it did recommend that these building blocks be used as guide for the creation of domestic legislation on the subject. 63 It stated that the development of a framework, be it international or national, be created through the use of adaptive governance. 64 Adaptive governance is a principle that allows incremental steps to an issue rather than one complete static regulation. 65 J. B. Ruhl, et. al. described adaptive governance as a tool to be used when facing a wicked problem 66 that has 57 BOLEY, A. & BYERS, M. U.S. Policy Puts the Safe Development of Space at Risk, 370 Science 174 (2020). 58 U.S. Dept. of State, Press Release, France Becomes Twentieth Nation to Sign the Artemis Accords, June 7, 2022, available at https://www.state.gov/france-becomes-twentieth-nation-to-sign-the-artemis-accords/. 59 Statue of the International Court of Law, Art. 38(a)-(c). 60 Supra note 56, § 10(2). 61 A/AC.105/C.2/2016/CRP.17. 62 Introduction, The Hague International Space Resources Governance Working Group Final report Jan, 27 2020, introduction, p. 11, available at https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut voor-publiekrecht/lucht--en-ruimterecht/space-resources/final-report-phase-2_the-hague-international-space resources-governance-working-group.pdf.

63 id . at 12. 64 id . at 13. 65 id .

66 Wicked being value-laden problems in which goal formation, problem definition, and equitable solution options are contested., COSENS, B. A., RUHL, J. B., SOININEN, N. & GUNDERSON, L. Designing Law to Enable Adaptive Governance of Modern Wicked Problems, 73 Vand. L. Rev. 1687, 1689 (2020).

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