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

there just as much as the Artemis members. It will be interesting how they approach this issue in the future. Even though, the Accords now have 31 members, one of whom I believe has staked a position on the national appropriation provision in the OST that would fit the ILC’s definition of modus vivendi and all the members have signaled a common understanding of those provisions. I do not think it rises to the level to be considered a subsequent practice just yet. The key word being yet. Conclusion There is very convincing evidence that the original drafters’ primary purpose of the Ost was to prevent the militarization of outer space by the nuclear capable superpowers at the time and that the OST never intended to apply the non-appropriation principle found in Article 2 of the OST to anything other than states under a plain reading of the treaty provision. However, I do not think that the argument that subsequent practice has also provided the same interpretation of those provisions just yet. In my opinion it is only a matter of time before we see actual state practice that will establish modus vivendi . At this point it appears that the members of the Accords have done what they can to legally facilitate the commercial mining of space resources. Now we just need to wait for technology to catch up. We will need to wait to see what comes next and who does what. A legal take away from an article in Space News shows the inevitable direction this is travelling however. In 2020, NASA solicited bids from multiple different companies to go to the moon, extract 50-500g samples, and once the companies could prove they have acquired those samples, NASA would pay them a nominal fee of between $15,000 to $25,000. The company would leave the sample on the Moon to be collected later. NASA explained that they were buying the lunar soil to demonstrate that it could be done, and to establish a behavior that was in compliance with the Outer Space Treaty. In the comments at the end of the article, a commenter claimed that they didn’t see putting samples of that soil in containers just to sit on the moon and do nothing as more than a stunt. The immediate and only response was “You must not be a Lawyer.” 352

(Moscow, 6 November 2018) accessed 4 November 2023. 352 Foust J, ‘NASA offers to buy lunar samples to set space resources precedent’ ( SpaceNews , 10 September 2020) accessed 4 November 2023.

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