New Technologies in International Law / Tymofeyeva, Crhák et al.

c) Subsequent Practice of States As previously mentioned, the VCLT allows interpretation of treaty provisions by analyzing the actions and behaviors of states after they conclude a treaty. Or, as Buga phrased it, continuing treaty negotiations by other means. 334 To assess subsequent practice, two elements need to be addressed. The first is the behavior while executing a treaty and the agreements between the parties coming from that behavior. 335 To examine the behavior of the subsequent practice there needs to be a determination if the parties have taken a position in regard to the interpretation of the treaty. 336 Deplano, in my opinion, correctly applies the definition of modus vivendi provided by the ILC to in her analysis of the 8 states that had signed on to the Accords at the time of her writing. That being an agreement to take a position is not a position in itself. 337 However, I would argue that there have been some changes since that writing that can be seen as an objective position by one new member, Saudi Arabia. As mention previously, Saudi Arabia officially invoked their desire to formally withdraw from the Moon Agreement. 338 However, six months before that invocation, Saudi Arabia became a member of the Artemis Accords. 339 I find this significant because there is a large difference in provisions regarding space resources in the Moon Agreement compared with the Artemis Accords. Article 11 of the Moon Agreement not only established that the Moon is the common heritage of mankind 340 and roughly restates the OST’s Article2 that “the Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means” in Article 11(2). However, Article 11(3) is very precise in its definition of who can and cannot appropriate those resources. It states that “neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non governmental entity or of any natural person . . .” 341 When Article 11(3) is contrasted with Section 10 of the Accords that explicitly states that mining those same resources does not constitute an appropriation, 342 it is easy to see that they are mutually exclusive. In my view, Saudi Arabia’s choice to formally withdraw from the Moon Agreement in favour of joining the Artemis Accords, is clearly an objectively visible position in regard to the ILC’s definition of modus vivendi . That is the behavior of only one member 334 Buga I, ‘The Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation’ (2022) 69 Netherlands International Law Review 241, p. 242. 335 Deplano R, ‘The Artemis Accords: Evolution or Revolution in International Space Law’ (2021) 70 ICLQ 799, p. 806. 336 Deplano R, ‘The Artemis Accords: Evolution or Revolution in International Space Law’ (2021) 70 ICLQ 799, p. 806, citing ILC, ‘Report of the International Law Commission on the Work of its Seventieth Session’, p. 43. 337 ILC, ‘Report of the International Law Commission on the Work of its Seventieth Session’, p. 43. 338 Supra, (n 306). 339 US Department of Sate Press Release (16 July 2022), accessed 4 November 2023. 340 Moon Agreement , Art. 11(1). 341 Ibid., Article 11(3). 342 Supra, (n 321).

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