OK ...Given the unpredictable nature of the world today, it is essential for leaders to prioritize collaboration and harmonious relations rather than risk conflict and instability through aggressive or isolationist policies....
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International Law
The Unpredictable World and the Lust for Power
"As the world becomes increasingly unpredictable and power dynamics shift, nations grapple with the desire for influence and control. From rising powers like China and Russia to established players like the United States, countries are jockeying for position and seeking to shape the international system in their image. This lust for power and influence has created a world order constantly in flux, with alliances and rivalries shifting rapidly and unpredictably. As global challenges like climate change, pandemics, and terrorism continue to threaten the world’s stability, cooperation and collaboration are more urgent than ever. How nations navigate this complex and unpredictable landscape will determine the world’s fate for years to come.
Since the end of the Cold War, the world has been in constant turmoil. Whether it is war, civil unrest, terrorism, economic sanctions, or geopolitical power plays, it seems like something is always brewing beneath the surface. Furthermore, while we cannot blame all this unrest on the world’s superpowers, it is hard to deny that they play a significant role.
At the moment, the United States and its allies appear to be calling the shots on the global stage. Nevertheless, as rising powers like China and Russia gain momentum, they are not content to simply play second fiddle. No, these nations are flexing their muscles and clarifying that they are not interested in following the Western-led world order.
It is a fascinating time to be a geopolitical observer, as the old guard tries to cling to power while new challengers rise to take their place. Moreover, with Beijing and Moscow finding a common cause in their resistance to US dominance, the stage is set for some epic clashes and surprising alliances. Who knows what the future holds? One thing is for sure – it is going to be a wild and bumpy ride.
The current geopolitical landscape is marked by increasing tensions between the United States and its allies on one side and China and Russia on the other. However, this is partly due to the lack of a transparent and inclusive global unipolar world order that accommodates the interests and concerns of all nations. The perceived dominance of the United States and its allies in shaping global governance and economic policies has fueled resentment and opposition from China and Russia, who view this as an attempt to maintain their hegemony over the international system. As a result, the two countries have been increasingly assertive in promoting their interests and challenging the existing order, leading to a complex and unpredictable global environment.
The current debate about the nature of the world order reflects the broader discussion about global power dynamics and the role of different actors in shaping the international system. Some argue that the United States and its allies dominate the existing order and that a more equitable and multipolar system is needed to consider the interests and voices of diverse nations and peoples.
Scholars like Samuel P. Huntington and Francis Fukuyama systematically put forward competing theories about the post-Cold War world. Huntington argued that cultural and religious identities would be the primary source of conflict and cooperation, while Fukuyama contended that liberal democracy represented the end point of ideological evolution. However, as China and Russia demonstrate, cultural and religious differences do not necessarily preclude cooperation and unity, challenging the assumptions of Huntington’s theory; in the same vein, Fukuyama’s theory seems increasingly outdated as non-liberal democratic states like China and Russia emerge as global powers, shaping the international order according to their interests and values.
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However, the current state of the world seems to contradict both of these theories, as we are witnessing ongoing conflicts between nations, including those driven by political and economic ideologies. Additionally, there are ongoing tensions between different cultural and religious groups and increasing concerns over issues such as inequality, climate change, and global pandemics. Therefore, it appears that the world is more complex and multifaceted than either theory suggested and that we must continue to grapple with these issues in order to create a more peaceful and stable global order.
Whether the world should be divided into two poles, with the US and its allies on one side and Russia and China on the other, is complex and contentious. While some argue that this political division already exists, others believe such a binary worldview is overly simplistic and ignores international relations’ many nuances and complexities.
Recent events have indeed underscored the tensions between these two supposed poles. At the G20 finance ministers’ meeting in Bengaluru, for example, Russia and China refused to endorse a joint statement condemning Russia’s invasion of Ukraine and the use of nuclear weapons. This move has further exacerbated the already fraught relationship between the West and Russia and highlights the growing alignment between Russia and China.
However, it is essential to recognize that not all countries fit neatly into one of these two supposed poles. Many nations have unique geopolitical interests and relationships and cannot be easily categorized as pro-US or pro-China/Russia. Furthermore, many issues transcend these supposed poles, such as climate change, economic inequality, and global health pandemics.
So, while the world may appear politically divided into two poles, the reality is much more complex and fluid. As always, international actors must engage in nuanced diplomacy and strive to find common ground rather than simply relying on simplistic binaries.
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Since the world is starving for peace and stability, achieving global
peace and solidity requires cooperation among major world powers,
regardless of whether the world operates under a unipolar or multipolar
system. However, the current antagonism between Russia, China, and the
US is hindering any such cooperation. It is crucial to recognize that
the planet earth is the only place to live and that peaceful coexistence
is necessary for its inhabitants. War and antagonism only bring
destruction and suffering, not only to those on the battlefield but also
to innocent civilians. Given the unpredictable nature of the world
today, it is essential for leaders to prioritize collaboration and
harmonious relations rather than risk conflict and instability through
aggressive or isolationist policies."
It doesn’t take one to be a Nostradamus to predict the general trends in international affairs for 2023 with certainty. This year will be difficult, turbulent and dangerous for all the actors in global politics. In what particular ways, though? What risks are most likely to transpire? Looking back on a multitude of challenging problems we inherited from 2022, we’ll try to highlight those that could be the most devastating for the international system over the next 12 months.
1. Escalation of the Russian-Ukrainian conflict. Even if we put aside the threat of a nuclear clash between Russia and the United States, the set of scenarios for a possible escalation remains formidable. These include one of the parties determined to launch major offensive operations, the Ukrainian military’s willingness to move hostilities deeper into Russia’s territory, deliveries of new, more effective weapons systems to Ukraine by Western partners, and the direct involvement of one or more NATO member states in the conflict (for example, by attempting to establish a “no-fly zone” over parts of Ukrainian territory). Any such scenario might have unpredictable but undoubtedly dire consequences—not only for the immediate participants in the conflict but also for the international system as a whole.
2. U.S.-China clash over Taiwan. The U.S.-China tensions have continued to escalate over the past year, peaking in the scandalous visit of the former U.S. House Speaker Nancy Pelosi to Taiwan in August. Beijing responded with unprecedented military exercises in the Taiwan Strait and violations of the existing informal “median demarcation line”. Although the tensions somewhat eased after Chinese and American leaders met on the sidelines of the G20 summit in Indonesia, the prospect of a new escalation cannot be ruled out. The global implications of the conflict over Taiwan would be no less, and probably even more significant, than those of the Russia-Ukraine conflict.
3. Paralyzed UN Security Council. Over the past few years, the permanent members of the UN Security Council have found it increasingly difficult to reach consensus on key issues of international security. Security Council meetings turn into eloquence contests increasingly often, thus ruling out the possibility of political compromise. If this continues in 2023, the practical work of the Security Council could be completely paralyzed, which would entail the saddest consequences for both the UN and the entire historically established system of international institutions.
4. Breakdown of the U.S.-Russia START talks. The coming year could be crucial for the fate of the U.S.-Russian bilateral strategic arms control. START III—the last remaining agreement between Moscow and Washington—expires in just three years, leaving critically little time for a new deal to be negotiated. Especially since the two sides are fundamentally at odds on what a future agreement should include. The cancellation of the Bilateral Consultative Commission meeting, scheduled for late November/early December 2022 in Cairo, attests to the difficulties of even kickstarting a meaningful dialogue on these critical issues in the current environment.
5. Escalation in South Caucasus. The trilateral agreement between Azerbaijan, Armenia and Russia signed in November 2020, as well as Russian peacekeepers allowed to freeze the conflict, have not yet brought about the conflict’s final resolution. Today, tensions remain both in Nagorno-Karabakh and along the Armenian-Azerbaijani border. A new outbreak of hostilities looks more than real—especially unless there is at least limited progress in fostering political settlement within a year. Another round of escalation would bear serious repercussions for Russia and the CSTO, possibly leading to the intervention of third countries in the conflict.
6. Unrest in the Sahel. Over the past three years, Burkina Faso and Mali have seen a total of four coups d’état. Ethnic and sectarian antagonisms have aggravated, jihadist groups have become more active and internal migration has risen sharply. The situation is not much better in the neighboring Niger, where an attempted coup d’état was the case in the spring of 2021. France, a country that traditionally acted as a guarantor of security in the Sahel, is winding down its military presence in the region. The possible collapse of one or more states this year would inevitably have a long-term devastating impact upon the entire African continent.
7. Civil war restarted in Ethiopia. The two-year military confrontation between Addis Ababa and Ethiopia’s northern province of Tigray has been one of the bloodiest conflicts in this century, with a death toll standing at least at half a million people. Last November, first in Pretoria and then in Nairobi, cease-fire agreements were signed. Both the federal government and the separatists, however, have been slow to fulfill their obligations under the agreements. Eritrea, which had been involved in the conflict on the side of the federal government, also appears to have delayed its withdrawal from Tigray. In addition, a number of persistent inter-state issues plague the Horn of Africa and its neighborhood, including territorial disputes, cross-border migrations and a competition for resources. All of these increase the likelihood of various conflicts in East Africa this year.
8. Humanitarian disaster in Yemen. Last spring, there seemed to be a chance for putting an end to the long-running civil conflict in Yemen, complicated by the involvement of Saudi Arabia, the UAE and Iran. In April, a two-month cease-fire agreement was reached under UN auspices, which was since extended twice. However, the negotiations were broken off in October, and all parties to the conflict currently appear to be preparing for a new round of military confrontation. This round may get underway at any moment, which would undoubtedly aggravate the humanitarian situation in Yemen, threatening Saudi oil exports and further complicating relations between Saudi Arabia and Iran.
9. Failed state-building in Libya. The country entered 2023 with dual power. The parliamentary and presidential elections scheduled for the end of 2021 never took place: six months ago, the streets of Tripoli saw clashes between opposing political factions, and all efforts of the international community towards national reconciliation proved futile. The long-awaited elections are now scheduled for August-September 2023. In case state-building in the long-suffering Libya fails again, a new round of the endless civil war will probably commence, which will not be limited to Libya alone, rather affecting the entire Eastern Mediterranean and North Africa to a greater or lesser extent.
10. Escalation in Syria. As in Libya, civil war has been raging in Syria for 12 years, with no real chance for a sustainable political settlement in the near future. The situation is complicated by the fact that foreign armed forces have been operating in the Syrian soil for quite some time, including without the explicit consent of Damascus to their presence. The number of negative scenarios for the development of the situation is scary: a large-scale Turkish operation against the Syrian Kurds, ongoing attacks of Islamic fundamentalists from the territory of Idlib Province, rising intensity of Israeli-Iranian confrontation in Syria, not to mention the deepening economic crisis in the country.
11. Afghanistan turned a “failed state”. The past year did not confirm the gloomiest predictions: Afghanistan did not become a “failed state,” while the new authorities did not provoke an exodus of millions of Afghans from the country and did not declare jihad on the neighboring states. But there is no guarantee that 2023 will be as relatively peaceful as the past year. Socioeconomic problems keep piling up, relations with the country’s neighbors, including Tajikistan, Iran and Pakistan, are difficult to build, and a “streak of diplomatic recognitions” of the new Kabul regime is not yet in sight. One cannot rule out the possibility of growing internal instability in Afghanistan with numerous negative consequences, both for the Afghans and for the neighboring nations in South and Central Asia.
12. The Sino-Indian clash in the Himalayas. The significant Indian-Chinese border clashes most lately occurred in the spring and summer of 2020, but the territorial disputes between the two nations cannot be considered resolved since, as new incidents of varying scale and duration are quite possible in 2023. Even if these incidents can be avoided, tensions in India-China relations present fundamental obstacles to any plans to see Eurasia “united”, creating numerous problems for such institutions as the SCO and BRICS, where India and China both are members, as well as for all countries seeking to act as partners simultaneously for both Delhi and Beijing (including Russia).
13. Instability in Iran and clashes in the Persian Gulf. Last year, mass protests in Iran reached a level not seen since the Green Movement of 2009. At the same time, hopes for a quick revival of the multilateral agreement on the Iranian nuclear program (JCPOA) were dashed, raising the prospect of Tehran’s withdrawal from the Treaty on the Non-Proliferation of Nuclear Arms. In turn, this prospect could provoke Israel to launch a preventive strike against Iranian nuclear infrastructure this year, possibly leading to incidents where oil tankers in the Strait of Hormuz could be involved. The implications of such a development for stability in the Middle East and for global energy cannot be overstated.
14. A new COVID pandemic outbreak. The year 2022 did not see a final victory over COVID-19. On the contrary, mankind became closely familiar with modifications of the already familiar omicron strain, such as “kraken”, “centaur”, “Cerberus”. Fortunately, the virus has so far evolved in the direction of more infectious but less lethal strains. However, there is no guarantee that this year we will not encounter a new, highly pathogenic variety of coronavirus. This prospect looks particularly worrisome, given the extremely low vaccination rates in most countries of the Global South and the apparent lack of coordination of individual state strategies in fighting the pandemic.
15. Cyclical economic downturn. A decisive struggle of the world’s leading economies against last year’s over-the-top inflation could trigger a reverse problem as the global economy could be diving into another cyclical crisis in 2023. Any intensification of the trade war between the West and China would have a similar effect. It is no coincidence that the IMF and the World Bank have consistently made downward corrections of their economic growth forecasts for the current year over the past few months. Some experts go even further, speculating about the prospect of a deep structural crisis in the global economy, which would take an unescapably grim toll on the socio-political situation in the affected countries.
It seems almost inevitable that some of the above-listed negative developments will prove real this year, whether in one form or another, and their cumulative effect will be greater for global affairs than their simple sum. Should two or three of the 15 “horror scenarios” become a reality, the system will probably manage them. But if there are seven-eight of those or more, we might see a chain reaction with the world order collapsing, something that was much bandied about last year. In this case, 2024 will be even more challenging, turbulent and dangerous than this year.
From our partner RIAC
Most theorists of nationalism claim that nationalism is a modern phenomenon. However, they commonly fail to notice that the phenomenon to which they vaguely refer as Modernity is absolutely determined and defined by a very compact and precisely structured socio-economic system, that of capitalism. This is why capitalism as a whole – rather than its particular aspects, such as Gellner’s “industrialism”, Anderson’s “print-capitalism”, Nairn’s “uneven development”, Hechter’s “internal colonialism”, Tilly’s “mass-militarisation”, or Conversi’s “Westernisation” – inevitably arises as the most adequate framework for analysis of nationalism as a historical phenomenon, offering the reasons for nationalism’s emergence and continuing existence.
Whereas the principle of unequal exchange and accumulation of wealth in all previous systems was to provide socio-economic security and set social hierarchy, capitalism has built a mechanism which makes unequal exchange self-perpetuating, so as to make accumulation of wealth perpetual and limitless. Capitalism’s imperative for perpetual private profit, present in all its phases, both pre-industrial, industrial and post-industrial, generates particular social conditions that tend to undermine the very sustainability of the capitalist system: a perpetually widening gap between the exploiting elites on one side and the exploited masses on the other side leads to a perpetual rise of insurrectionary potentials of the latter, threatening the stability of the entire system. Bridging that gap without changing the structure of society becomes the paramount task for the capitalist system in its attempts to preserve the mechanism for incessant exploitation of labour and limitless accumulation of capital. Therefore, this system has introduced a social glue tailored to conceal, but also to cement, the actual polarisation of society. This glue has been designed as an ideal of absolute social unity, based on the assumption that both the exploiting and the exploited are born as equal, with equal rights, identical interests, and common identity, and that together they form an entirely new entity, the nation.
The nation is conceptualised as a simulated community whose homogeneity generates its power over the territory it inhabits and whose power over the territory it inhabits generates its homogeneity. In other words, the nation is designed as a community whose capacities for social homogeneity and political sovereignty stand in direct proportion: the might of homogeneity creates the right to sovereignty, the might of sovereignty creates an obligation to homogeneity. In historical, political, and social reality, the nation and nationalism always operate in accordance with this logic. The nation, by its very nature, consists of nationalism. To paraphrase Gellner, not only does nationalism invent nations where they do not exist, but nations themselves exist only in the form of nationalism: in social reality the nation operates as a fluctuating discourse rather than a fixed substantive and enduring entity. In this sense, nations function as nationalism: nations are generated and brought into being by their respective nationalisms; and nations continue to exist as long as the societies that have been politically framed as nations remain capable of perpetuating their respective nationalisms.
The nation-state arose as superior to the other forms of state characterising early capitalism – such as city-state and mercantilist empire – due to its ability to protect the domination of the capitalist class by systemically containing the potential discontent of other classes. For capitalist elites, the nation-state performs yet another important function: while populations fashioned as nations become increasingly isolated one from another by their respective nationalist ideologies, symbolic boundaries, and physical borders, and thus become increasingly powerless, capitalist elites further strengthen their position by operating across and above these ideologies, boundaries, and borders, as a powerful trans-national network. Eventually, supported by the ideology of nationalism, capitalism redesigns all states in the world as nation-states, by which they buy a must-take ticket for entrance into the global capitalist system. Reliance on nationalism, based on this must-take principle, has also been adopted by all left-wing and communist regimes, in their permanent striving for full-fledged membership in this system.
Nationalism successfully played the designated role within the capitalist system until the last decades of the twentieth century. However, the global neoliberal revolution, spread under the label of globalisation, has widened the gap between the rich and the poor to such an extent that classical nationalism, connected with liberal-democratic principles, has ceased to be able to conceal that gap, having made the capitalist system unstable, or even unsustainable. Therefore, capitalist elites have identified a possible solution in a resurgence of nationalism in a more robust, non-democratic, authoritarian form. This form of nationalism announces a new phase in capitalism’s development, the phase of hyper-capitalism, in which exploitation of labour and accumulation of wealth tend to become absolute, supported by overtly robust, authoritarian methods of rule.
This book demonstrates that capitalism needs and generates nationalism, both democratic and authoritarian, as its structural requirement that eventually becomes a conditio sine qua non of its very existence. In other words, not only is there no nationalism without capitalism; more importantly, there is no capitalism without nationalism.
First published 2022
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158 2022
© Zlatko Hadžidedić
ISBN 978-1-032-15970-6 (hbk)
ISBN 978-1-032-15972-0 (pbk)
ISBN 978-1-003-24652-7 (ebk)
International Law
Will COPUOS five-year mission produce a new “international governance instrument” for outer space resources?
Introduction
During its 2022 session, the Legal Subcommittee (LSC) of the United Nation’s Committee on the Peaceful Uses of Outer Space (COPUOS) created a Working Group on the Legal Aspects of Space Resource Activity and gave it a five-year mandate to gather information, study the current legal framework, and “assess the benefits of further development of a framework for such activities, including by way of additional international governance instruments.” (emphasis added). A survey was sent to the LSC’s member states and official observers, with a response due by December 30.
Fifteen member states and five non-governmental official observers responded to the surveys. The responses were recently posted online by the United Nations Office on Outer Space Activities (UNOOSA), the parent body of COPUOS. This article will look at eight of them: three from states representing the range of international opinion, and all five of the observers, who represent part of “civil society”.
The Working Group Mandate: Address Unresolved Space Resource Issues
COPUOS-LSC gave its Working Group the following mandate (emphasis added):
The Working Group shall:
(a) Collect relevant information concerning activities in the exploration, exploitation and utilization of space resources, including with respect to scientific and technological developments and current practices, taking into account their innovative and evolving nature;
(b) Study the existing legal framework for such activities, in particular the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and other applicable United Nations treaties, also taking into account other relevant instruments, as appropriate;
(c) Assess the benefits of further development of a framework for such activities, includingby way of additional international governance instruments;
(d) Develop a set of initial recommended principles for such activities, taking into account the need to ensure that they are carried out in accordance with international law and in a safe, sustainable, rational and peaceful manner, for the consideration of and consensus agreement by the Committee, followed by possible adoption by the General Assembly as a dedicated resolution or other action;
(e) Identify areas for further work of the Committee and recommend next steps, which may include the development of potential rules and/or norms, for activities in the exploration, exploitation and utilization of space resources, including with respect to related activities and benefit sharing.
The establishment of the Working Group and its mandate is significant. It represents a consensus acknowledgement that the Outer Space Treaty (OST) does not adequately address space resource activity and how the benefits of outer space are to be shared. It is also the first time since the 1970’s that member states of COPUOS have been willing to consider a new “international governance instrument” beyond non-binding principles and recommendations (e.g., the COPUOS long-term sustainability guidelines of 2019).
The Working Group has a five-year work plan. During initial setup in 2022, it was instructed to gather information from the members of the LSC to help establish the scope of its work. To that end, a survey was distributed to all member states and official observers, inviting a response to the following topics (emphasis added):
– The type of space resources that fall within the mandate and scope of the Working Group.
– The type of activities that fall within the mandate and scope of the Working Group.
– The type of information to be collected by the Working Group in accordance with its mandate.
– The views of States members regarding the existing legal framework for space resource activities.
– The current practices and challenges in the implementation of the existing legal framework for such activities.
– The benefits and challenges to the development of a framework for such activities.
– The relevant factors for the development of a set of initial recommended principles for such activities.
– The format, agenda, topics and other details of the dedicated conference (currently) scheduled for 2024.
– Any other background or information paper, or any other views, that States members may wish to share.
Responses of Representative States: Luxembourg, Russia, and Australia
Luxembourg is a member of the European Space Agency and one of the first signers of the Artemis Accords. It is the second country (after the United States) to pass a national law authorizing its own nationals (including corporations headquartered there) to remove and take ownership of outer space resources. A sample from its response:
Luxembourg considers that the Artemis Accords, as well as the Building Blocks of the Hague Working Group, constitute a valuable contribution to the discussions in international fora, especially the UN COPUOS.
According to the Luxembourg legislator, space resources are now commonly defined as abiotic resources that are in situ in outer space and can be extracted. This notion includes, for example, mineral resources and water, but not orbital positions or frequencies.
Luxembourg ratified the Outer Space Treaty, the Liability Convention and the Registration Convention and is in the process of accessing the Rescue Agreement. Luxembourg has not signed the Moon Agreement. The international space treaties have not yet been tested with regard to the rights over resources found in space. Most of carried missions have taken place for scientific purposes. However, for the sustainability of future deep space exploration, for commercial space projects and space mining to be viable, future explorers and investors will need certainty regarding their rights to the materials they find.
It seems essential that the Working Group, especially when formulating the set of initial recommended principles, is driven by adaptive governance principle and focuses on the most pressing issues. The highest priority is the recognition of individual rights over space resources, mechanisms for avoiding harmful interference and for the establishment of safety zones.
Russia is a fully “spacefaring” country, with the capacity to launch payloads and humans into outer space and send probes to the Moon and planets. It has not signed the Artemis Accords nor passed a national law authorizing private ownership of space resources. From their response:
Space resources include celestial bodies, spaces and territories of celestial bodies, mineral resources, liquids and gases located on them, various types of radiation, orbital-frequency resource, and other objects. . . . Due to the fact that the necessary legal framework for research and study of certain types of space resources, such as solar energy and the orbital frequency resource is available or not required, it is advisable to exclude these types of resources from the scope of the Working Group while referring to them in the classification system.
An important task of the Working Group is also to develop a monitoring mechanism for activities related to the exploration and utilization of space resources, which may include:
– issues of establishing responsibility when implementing the said activities;
– monitoring compliance with established international standards regulating the extraction of space resources, as well as control over the lawfulness of such operations;
– control over the organization of licensing of activities related to the exploration, exploitation and utilization of space resources;
– an algorithm for resolving conflicts and disputes between actors engaged in the extraction and utilization of space resources, an algorithm for international consultations between states;
– a mechanism for informing the international community (including the obligation to inform the UN Secretary-General) of the nature, progress, locations, and results of such activities;
– consideration of the feasibility of establishing a special international body responsible for securing the regime of the utilization of space resources (by analogy with the ITU, the International Seabed Authority).
A space resource, even after its extraction (removal), does not lose its unique natural extraterrestrial origin, unlike a resource mined on Earth. The transformation of space resources, in particular their extraction and, as a result, the acquisition of a natural-anthropogenic nature, does not give rise to ownership of these resources. However, the national legislative initiatives of certain States vest their non-governmental persons, citizens and entities with the right to mine, appropriate, own, transport and sell the mineral resources of celestial bodies, including asteroids. But the national law of any State cannot extend to territories outside its jurisdiction.
Thus, it is necessary for the Working Group to determine a mechanism for prioritizing missions and the number of admissible missions in the light of the physical characteristics of the celestial body and to consider the issues of the avoidance of the depletion of extraterrestrial resources and conservation of the space environment, among other issues.
Australia is unique among the world’s space powers: it has ratified the Moon Agreement and signed the Artemis Accords. Steven Freeland of Australia has been named vice-chair of the Working Group (Andrzej Misztal of Poland is the chair). Here is part of its response as it tries to straddle two worlds:
Australia considers that the type of space resources and activities that fall within the mandate and scope of the Working Group may include:
– Activities contemplated by the five United Nations (UN) treaties on outer space;
– Activities and definitions contemplated by the Hague International Space Resources Governance Working Group on the Building Blocks for the Development of an International Framework on Space Resource Activities, including definitions for the terms ‘space resource’ and ‘space resource activities’;
– Activities contemplated by national agencies, including the Artemis program;
– Activities contemplated through States Members’ policies, including NASA’s Lunar Landing and Operations Policy Analysis and the European Space Agency’s Space Resources Strategy.
Australia is party to the five UN treaties on outer space and is committed to meeting its international obligations. Australia is also committed to contributing to the development of norms that ensure the long-term safety, stability and sustainability of the outer space environment. The activities of States in outer space are also guided by a number of non-binding instruments. Despite not holding the status of law, Australia recognises that these non-binding instruments indicate the intentions of signatory States as to their conduct in outer space.
Australia does not consider that Article II of the Outer Space Treaty prohibits ownership of resources extracted or removed from the Moon or other celestial bodies. However, ensuring compliance with Articles I and II of the Outer Space Treaty requires some understanding of the elements of those obligations or ways of satisfying them in the context of space resource activities, and the Working Group may like to give consideration to this issue.
In Australia’s view, the establishment of an international regime governing exploitation of the Moon’s natural resources consistently with Article 11(5) [of the Moon Agreement] would permit and facilitate space resource exploitation in a rational, safe and equitable manner, providing a means by which the exploration and use of outer space can be carried out for the benefit and in the interests of all countries.
Response from Observers (“Civil Society”)
Six Observers responded to the survey. One of those, the European Space Agency, is an inter-governmental organization. The other five are non-profits, part of “civil society” (“any non-profit, voluntary citizens’ group which is organized on a local, national or international level”) that gives voice to stakeholders. Here is a sample of their responses, in alphabetical order:
For All Moonkind is focused almost exclusively on the preservation of historic/cultural landing sites from the early years of lunar exploration. Their position is that any resource agreement must include protection of such sites:
Culture is who we are, where we have been and where we are going. It is what shapes our identity as humans. In short, development cannot be sustainable without culture. Moreover, cultural heritage protection is a mainstay of intergenerational equity. The protection and preservation of human heritage recognizes those who came before us, protects the gains of our civilization and allows future generations to learn from both their processes and results.
As the Working Group considers the legal aspects of space resource activities, it must address the impact those activities will have on cultural heritage and use the universality of heritage to achieve consensus.
Zones could be established to manage, and hopefully prevent, conflict, starting with proposed heritage protection zones. For All Moonkind also suggests that the first Coordination Zones can be implemented immediately, to recognize and protect human heritage on other celestial bodies. We believe that international community will be more willing to reach agreement regarding the protection of a site of universal value, as opposed to the operative site of a State or private company.
The Moon Village Association is an umbrella organization that facilitates the work of many groups and individuals. Its response* highlights sharing the benefits of outer space exploration and development. Although it stopped short of calling for mandatory benefit sharing, it did call for consideration of benefit sharing at every level of decision-making:
It is the sense of this Working Group that benefit sharing as a desirable feature in the context of international and space law, is in the process of maturing into a more consequential working theme, whose consideration should be deemed mandatory at relevant legal and operational levels, in the same vein as all relevant factors reviewed in this recommendation should be considered mandatory.
This said, it is also the sense of this Working Group that no benefit sharing first principles and specific mechanisms may manifest unless access issues have been resolved in close concertation with key operators and strongly invested stakeholders.
Specific mechanisms need to be considered simultaneously to legal and operational clarification, in the context of space resources utilisation, of non-exclusionary forms of priority and property rights intended to enable investment and operations to proceed.
While remaining aware of the fact that without economic sustainability there is neither sustainability nor access to and sharing of benefits, it is nonetheless the sense of this Working Group that, without a broad and inclusive debate on measures to mitigate future inequalities that may result from lack of sufficient consideration of access and benefit sharing issues, it would become considerably more difficult to assert international legitimacy in defining above specific legal and operational mechanisms.
The National Space Society was formed in 1987 by a merger of the National Space Institute with the L-5 Society. It generally supports the private sector and discourages regulation:
Notably, there are four factors most relevant to the development of a set of initial recommended principles: 1) the mitigation of harmful impacts and interference; 2) the need for economic incentives and clarity in benefit-sharing; 3) recognition of resource rights regardless of domestic or international implementation; and 4) the dissemination of data.
First, the mitigation of harmful impacts and interference speaks to the impacts of ISRU [In Situ (in place) Resource Utilization] activities and external interference upon ISRU activities. The protection of international cultural heritage sites in outer space should be paramount regarding ISRU impacts. . . . As humanity transcends into the solar system, the protection of how we progressed is important historically, culturally, and inspirationally.
Second, the current void of governance has contributed to a lack of investment in ISRU because of uncertainty within the legal field and the calls for monetary benefit-sharing. The recommended principles should incentivize investment by clarifying that benefit-sharing ought not to be compulsory monetary benefit-sharing but rather encouragement of enabling and promoting the development of technology, capabilities, and education; particularly in developing countries. Benefit-sharing could also take the form of an international fund to assist in the above-mentioned actions and bolstering the ever-necessary UN SDGs [sustainable development guidelines]. Clarity with the intentions of benefit-sharing is likely to incentivize economic activity to develop ISRU further.
This leads into the third and fourth factors of resource rights and data dissemination. In order for ISRU to further the human experience to outer space, the right to utilization is necessary. Thus, legitimate resource rights provided through legal processes should be recognized regardless of their domestic or international implementation. This would also incentivize economic investment. Lastly, the dissemination of data related to the type and amount of resources discovered and/or extracted should be considered. This is significant because as data becomes available regarding the amount of resources in varying places, it can create clearer methods of governance.
The Open Lunar Foundation is “committed to enabling peaceful, cooperative lunar settlement for the benefit of all life.”
The recovery, exchange and use of natural resources have always been foundational to the development and maintenance of any human society. Yet history also shows that uncoordinated access can create conflict and unfettered development can grow to the detriment of people, places and intentions. As humanity seeks to establish new roots in the vastness of space, the technical, economical and legal ability to make use of available natural resources will thereby play a crucial role in determining our failure or success.
In polycentricity, a shared set of goals and institutions empowers local management by semi-autonomous decision makers. Polycentricity leverages localized synergies and deep system knowledge for high social-ecological and governance congruence. Through subsidiarity and diversity, polycentric governance enables institutional experimentation and exchange in uncertain and complex environments. In a polycentric lunar governance system, the different lunar resource systems can be managed locally and individually while conforming to universal norms and principles such as transparency, sustainability, peace, cooperation, and justice.
Create a Catalog of Scarce Resources: Not all space resources are equally accessible or exist in large quantities. Specific resources or regions may be affected by inherent conditions of scarcity, such as the “peaks of eternal light” at the lunar poles or the “radio quiet zone” on the far side of the Moon. To ensure appropriate management regimes, we recommend developing and updating a living list of resources and regions involving conditions of scarcity. States, operators and other interested stakeholders should involve themselves in this definitional process and publicly commit to recognizing and respecting the list.
Scaffolding Towards Shared Frameworks: Wishing to ensure that emerging lunar regulations truly enable a plurality of societies, parties and activities, while not over-specifying institutional structures based on past approaches, a foundational document could be adopted which focuses on guiding principles and shared agreements rather than specific resource management and coordination approaches. Such a document could emphasize commitment to peace, cooperation and accessibility while protecting the ability for adaptive learning and evolution.
The Space Generation Advisory Council submitted itsE.A.G.L.E. report from May 2021 in lieu of a specific survey response. The particulars of “Effective and Adaptive Governance for a Lunar Ecosystem” are too long to summarize (see list below). In general, it calls for a new international “charter”:
The regulatory tools devised in UNCOPUOS seemingly follow a life span of roughly 20 years. Treaties, principles, and guidelines each characterised two decades of international space diplomacy by providing a reference narrative for the community. After long reflection, we realised that the narrative of the next two decades could be captured by charters. With this term we refer to a legal document enacted to define the essential features and boundaries of a legal framework through the solemn commitment of its signatories. Examples of famous charters used in this sense include the Magna Carta Libertatum, the Charter of the United Nations and the Charter of Fundamental Rights of the European Union.
Suggested Topics for a Lunar Governance Charter
– Fundamental Principles of Space Law
– Guiding Principles for a Lunar Governance Charter
– Inclusiveness
– Interoperability
– Human Life Protection
– Heritage Preservation
– Science / Business Balance
– The Use of Lunar Resources
– Safety Zones
– Liability & Registration
– Minimum Coordination
– Conflict Resolution
At the E.A.G.L.E. Team, we value the ability to unite and converge above everything else. When we set foot to initiate the development of this document, our main goal was to provide a contribution that could simultaneously increase the value of all others by providing them with meaningful opportunities to be expressed. We wanted to inspire global actors and catalyse international discussions on the exploration and use of the Moon. With this purpose in mind, we birthed the idea of a Lunar Governance Charter as a shared narrative that could frame the global debate on lunar governance within pragmatic but also idealistic terms. Structured in the way presented in Section 3, we believe that a Lunar Governance Charter could constitute a useful reference framework for the evolution of adaptive governance.
Conclusion
The responses from member states and observers show a wide spectrum of opinion concerning “additional international governance instruments”. Some do not want any additional rules unless they confirm private property rights and protect space resource activities. Others would require any space resource activity to be approved by an international authority, like the International Seabed Authority in the UN Convention on the Law of the Seas. In between are those who do not want a new authority but do want a new international agreement that will protect essential public policies while providing legal support for private activity. That agreement might be a stand-alone treaty, like the other UN space treaties, or it might be part of the Moon Agreement as an Article 11 resource agreement.
There is also a spectrum concerning what public policies should be protected. Most would agree on protecting heritage sites, but does that include every track mark by every rover? To what extent do we share information and technology? As for protecting activities, how can safety zones or priority rights be structured so that they are not prohibited exclusive claims? In general, how can we maximize sharing the benefits of outer space while still establishing mechanisms that promote economic sustainability?
The next five years may well produce a new international agreement that will guide the nations of Earth as we begin to leave the home world. Without one, we might repeat the mistakes of the Age of Imperialism, when powerful countries battled for control of distant resources, causing centuries of war, suffering, and neglect. Humanity has a chance to start over, and the new COPUOS working group might be the best vehicle for doing so. For this year’s meeting dates and other information about COPUOS and the Legal Subcommittee, click here.
* MVA’s response was primarily written by Suyan Christina Malhadas and the Space Law and Policy Research Group of the Catholic University of Santos, Brazil, with contributions from members of MVA’s Adaptive Governance Working Group, including this author.
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