On 5 January 2023, Saudi Arabia gave notice to the United Nations of its withdrawal from the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”), to take effect on 5 January 2024.  This marks the first time any State has withdrawn from any of the five “United Nations Space Treaties”, the most widely accepted of which is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”).

As the withdrawal follows Saudi Arabia’s signing of the Artemis Accords with the United States, there is speculation that the withdrawal is prompted by a perceived incompatibility between the Moon Agreement and the Artemis Accords.  Since Australia and Mexico are signatories to the Artemis Accords and also Parties to the Moon Agreement, it is prudent to explore this further.

The Moon Agreement

The Moon Agreement was adopted in 1979 to provide (eventually) a legal framework for the utilisation and exploitation of resources on the Moon and other celestial bodies.  With 18 States Parties, some commentators have found this anaemic compared with the uptake of the other U.N. Space Treaties; even though this is a treaty relating to the Moon, which only a handful of States have reached by uncrewed spacecraft, only one sent humans there, and none have begun mineral prospecting.

The Moon Agreement does not establish a regulatory framework directly; Article 11(5) provides that the Parties are to meet and formulate this framework “as such exploitation is about to be feasible”.  It is not surprising that many States adopt a wait-and-see attitude, both in terms of the framework eventually created as well as the technological innovation needed.  After all, the International Seabed Authority was created in 1994 under the U.N. Convention on the Law of the Sea (“UNCLOS”) to regulate deep seabed mining and yet, nearly 30 years later, no mining is yet to occur.

Article 11(7) of the Moon Agreement commits the proposed regulatory framework to:

• the orderly and safe development of space resources;
• the rational management of these resources;
• expand opportunities in the use of those resources; and
• the equitable sharing by all States Parties in the benefits derived from those resources.

Moratorium under the Moon Agreement?

Some commentators have suggest that, as States are obliged under Article 11(5) to implement the regulatory framework when space mining becomes feasible, no space mining can occur until the framework is in place – in effect, that there is a moratorium until this happens.  This is perhaps supported in the timing of the implementation of the  deep seabed mining regime under UNCLOS, for there was a great deal of urgency in 1993 to (re)negotiate the features of this framework before UNCLOS entered into force in 1994.

One difficulty with the proposition of a moratorium is Article 11(8) of the Moon Agreement, which requires all space resources activities to be conducted consistently with the principles for the future framework prescribed in Article 11(7) – a redundant provision if there is indeed a moratorium.  Further, Part XI of UNCLOS required the regulatory regime to be created as and when it entered into force and not on a later date.  In any event, the travaux préparatoires of the Moon Agreement suggest pointedly that the agreed quid pro quo for deferring the creation of the regulatory framework was that there was to be no moratorium in the meantime.

Artemis Accords

In 2020, the Artemis Accords was signed by the space agencies of 8 States, including Australia.  By 1 June 2023, the space agencies of 25 States have signed the Artemis Accords.  The Artemis Accords is a bilateral non-binding agreement between the U.S. and the other signatories, setting out the rules and principles relating to activities on the Moon and Mars as well as participation in the U.S. Artemis Program.

Section 10 of the Artemis Accords states that resource extraction and utilisation activities are consistent with the Outer Space Treaty, and Section 11 sets out how “safety zones” would be established around areas on the Moon to conduct these activities.  Some commentators and States have based their criticisms on these two provisions and it is prudent to consider them, albeit briefly, here.

Some suggested that the Artemis Accords is an U.S.-centric rewriting of international law.  This opinion must be balanced with the fact that the Artemis Accords have attained 25 signatories in 3 years, all spacefaring States, while the Moon Agreement has 18 Parties after 44 years.  Meanwhile, any other space power, e.g. China, India, or the Russian Federation, can adopt similar instruments if they can convince others to sign; indeed, China and Russia have signed such a bilateral protocol, while India is signing the Artemis Accords.  As for rewriting the law, as both Sections 10 and 11 reinforce consistency and compliance with the Outer Space Treaty, this is hardly a radical rewriting of existing space law.

Arguably the most controversial aspect of the Artemis Accords is that “safety zones” are no more than a classic flag-planting land grab.  Even if the legal basis for these safety zones is questionable, this is hardly the first example of exclusive rights being granted in space; for decades the International Telecommunication Union has allocated exclusive orbital slots on the geostationary orbit.  Further, the concept of safety zones is also not new – The Hague Space Resources Governance Working Group suggested the same in Article 11 of its so-called “Building Blocks” (and stated specifically that they are compatible with the Outer Space Treaty).  It is curious that not even a murmur of objection was raised by some of those same critics as they voiced their support when the Building Blocks were presented to the U.N. Committee on the Peaceful Uses of Outer Space and its Legal Subcommittee.

What Do Australia, Mexico, and Saudi Arabia Have in Common?

Australia, Mexico, and Saudi Arabia are the only overlapping parties to both the Artemis Accords and the Moon Agreement.  There has been some unfounded speculation that Saudi Arabia’s withdrawal from the Moon Agreement was prompted by its incompatibility with the Artemis Accords, yet none has pointed to any incompatible provision between the two instruments.  Although it is tempting to dismiss such concerns on grounds such as the non-binding nature of the Artemis Accords or that it is a subsequent treaty to the Moon Agreement over the same subject matter, neither of them provides a complete answer.  A State cannot sign a later inconsistent, albeit non-binding, agreement and assert that it continues to observe the earlier treaty in good faith.  Further, as a bilateral instrument, the Artemis Accords is not a subsequent treaty vis-à-vis the Moon Agreement when the U.S. is not party to the Moon Agreement, and in any event only 3 of the 18 States Parties to the Moon Agreement have signed the Artemis Accords.

Accordingly, one must turn to the substance of the purported inconsistencies.

There are perhaps two potential areas of conflict between them.  The question of a moratorium is discussed and dismissed above.  The other is the requirement in Article 11(7) of the Moon Agreement for the equitable sharing in the benefits derived from space resources.  However, a deeper consideration of the provisions would show that no such conflict exists.  First, the Artemis Accords is focused exclusively on the means of carrying out space activities (each being an obligation de moyens), while the equitable sharing principle relates to the ends derived (an obligation de résultat).  Accordingly, all a State has to do to comply with both is to carry out its activities consistently with the Artemis Accords, and then share any benefits derived equitably as per the Moon Agreement.

Second, even if the Moon Agreement does not exist, all relevant States are already bound under Article I of the Outer Space Treaty to carry out all uses of the Moon and other celestial bodies “for the benefit and in the interest of all countries”.  Therefore it is reasonable to suggest that the equitable sharing of benefits derived from space activities is implied already; yet commercial activities in outer space have taken place for decades without any international levy or mandatory profit-sharing.  If anything, the fact that space resources would either be utilised in situ to further space exploration or made available on international commodity markets, already gives a greater public good than commercial remote sensing or satellite broadband ever did.

Third, Saudi Arabia could have called for a Conference of Parties under Article 18 of the Moon Agreement, either unilaterally or jointly with Australia and Mexico.  At such a conference, any purported incompatibility can be resolved or waived, or even a compatible framework under the Moon Agreement could have been negotiated.

Fourth, it is important to consider all four requirements of Article 11(7) of the Moon Agreement.  The orderly and safe development and rational management of space resources, and the expansion of opportunities in their use, are precisely what the Artemis Accords offers.  In this light, not only are the Artemis Accords compatible with the Moon Agreement, they are in fact in furtherance of the objects of the Moon Agreement.

Playing the Speculation Game

It is very tempting to speculate as to the reason behind Saudi Arabia’s withdrawal from the Moon Agreement.  If compatibility with the Artemis Accords is indeed the issue, Saudi Arabia would have likely said so – as it would help minimise the usual negative perception of any withdrawal from any treaty – though perhaps it refrained out of diplomatic regard for Australia and Mexico.  It is less probably to be a matter of external pressure from the U.S. or other signatories, for it would be surprising that Australia can remain party to the Moon Agreement as an original signatory and a steadfast U.S. ally, while Saudi Arabia is prevailed upon to withdraw.  Further, China’s ambitions for the Moon cannot be a factor when Saudi Arabia has already declared itself firmly in the U.S. camp by signing the Artemis Accords and, in any event, China is not party to the Moon Agreement.

In the writer’s respectful (and totally unfounded) contention, it is more likely that Saudi Arabia withdrew from the Moon Agreement because it felt ready to join the league of major space powers, none of which are party to the Moon Agreement.  In other words, it is a declaration of its maturity as a major space power and its readiness to be in the Premier League to leave behind the minor players and non-players in the lower divisions of the Moon Agreement.  Such reasoning is also more fitting with the Saudi general approach to treaties that is based more on realpolitik and policy intent than legal doctrine or principle.

In a world increasingly driven by the emotional and the superficial, the role of international lawyers must remain the same – to review and analyse carefully the relevant legal provisions and principles in the wider context of the whole instruments and where they sit in the entire body of the relevant law, and then give one’s opinion built on such solid foundations.  The question of the compatibility between the Artemis Accords and the Moon Agreement is no different and can only be resolved after such an analytical exercise has taken place, without relying too much on unfounded speculation of the possible motives behind the unilateral actions of individual States.