A close win for non-binding instruments in space law

“A close win for non-binding instruments in space law”. This post summarizes the outcomes of the IAC 2023 Special Session debate hosted by the Space Arbitration Association, a multidisciplinary session at this year’s International Astronautical Congress in Baku, Azerbaijan, which brought together high-level speakers from the fields of space law and policy, politics and diplomacy, to engage in a fun and interactive debate on the impact of non-legally binding instruments on the development of the law on outer space. 

The motion of the debate

On the 6th of October, 2023, the Space Arbitration Association hosted an educational debate on the role of non-legally binding instruments in the development of the law of outer space.  The motion of the debate was

“Be It Resolved, Non-Legally Binding Instruments Like The Artemis Accords Will Lead To The Harmonization Of The Law Of Outer Space.”

Non-legally binding instruments like the Artemis Accords have gained relevance following the rapid and successful contributions of emergent State and non-State actors, proliferation of space technologies, and a strained multilateral order. 

Two teams of two members each, argued for or against the motion respectively. The team for the motion (the “Applicants”) consisted of:

• Frans Von Der Dunk – Professor of Space Law, College of Law, University of Nebraska-Lincoln
• Ruvimbo Samanga – Board Member of the Space Arbitration Association; Ambassador, MILO Space Science Institute and

The team against the motion (the “Respondents”)consisted of:

• Ian Grosner – Federal Attorney, Brazilian Space Agency
• PJ Blount – Lecturer in Law, Cardiff University and Executive Secretary, International Institute of Space Law 

The debate was moderated by Viva Dadwal, Member of the Organizing Committee of the Space Arbitration Association; Associate at King & Spalding LLP.

The session began with a poll to gauge the sentiments of the audience, with an initial 48% for the motion, and 52% against. 

Arguments of the Applicants

1. Soft law is a valuable tool for the implementation of hard law. While not favored by all legal scholars, it allows the State to “test the waters”, with an exit strategy should the obligations not be favorable. Soft laws can also be gradually refined and adapted, and finally, they can serve as a Transparency & Confidence Building Measure (TCBM) if States are noting that other States are beginning to follow the relevant principles and recommendations. 
2. The Artemis Accords provide an elaboration of fundamental principles in the Outer Space Treaty, adding specific context to celestial bodies’ settlement and resource extraction. Controversial principles articulated in Articles IX, II, and XII respectively are also given context to avoid disputes. The fact that the Accords are also applicable only between partners makes them ideal for ensuring certainty and uniformity in space activities in a legitimate and logical way. 
3. Criticisms leveled by the Respondents included the US-centric nature of the Accords, as well as how their success was intrinsically tied to the Artemis program, which was argued as problematic and misleading, as it created the assumption that signatories to the Accords would, in turn, contribute to the wider Artemis program. The Applicants noted that the negotiation history of the Accords was tabled on an equal footing, with 8 initial countries each possessing the ability to exercise a veto right against any of the provisions. 

Arguments of the Respondents

1. It was argued that the Artemis Accords had the capacity of eroding the multilateral process, and undermining the existing treaty frameworks in favor of nationalistic interests. The most contentious provisions of the Accords are those elaborating on the use and by extension, commercialization of space resources, for which multiple schools of thought exist as to their permissibility. While various countries continue to domesticate space resource utilization into national law, the Outer Space Treaty is silent on the procedure to be employed, whilst the Moon Agreement necessitates an international regime to be put in place.
2. The issue of safety zones was also criticized for its lack of clarity on the duration and scope of operation, which can lead to situations where actors may unfairly claim access to territory which restricts the legitimate use and exploration of space for another actor. In certain circumstances this may be tantamount to appropriation, as it effectively excludes the rights of another State or party indefinitely, unless the activity, its duration, scope and nature are clearly expressed at the start of the mission. 
3. Criticisms levelled by the Applicants included the fact that the multilateral process has proven ineffective and unable to cope with the rapid developments in space business models, and that the Accords presented an interim measure to allow for the continuation of industry processes. The Respondents noted that the non-binding nature of the Accords would add to the challenges of enforceability, and that binding and enforceable mechanisms were necessary to bolster legitimate business and scientific interests in space. 

Rebuttal Arguments

In the rebuttals the teams were able to respond to points put forward in initial arguments. The Applicants emphasized that the Accords were a living document, which would allow for the continued diversification of interests expressed therein (so far there are 29 signatories from nearly all continents). It is also yet to be seen whether China disagrees with the core substantive approach of the Accords, and thus it cannot yet be argued that they would lead to a geopolitical bifurcation. It was also advanced that the liability regime under the main space treaties was sufficient to address the gap in dispute resolution, with alternative dispute resolution mechanisms also available to satisfy commercial interests (i.e. arbitration and mediation).  

The Respondents made reference to US constitutional law, citing the authorities vested in the different bodies when making commitments on behalf of the State. It was argued that NASA does not have the requisite mandate to sign a legally binding document and that as a result, the Artemis Accords cannot create obligations which are binding and enforceable upon the parties. It was also noted that the Accords would have the likely impact of promoting inconsistent principles into the space domain, including the Executive Order, where it was declared under the Trump administration that space was not a global commons. Such a statement is not factually correct, and undermines the spirit of the outer space treaties. 

Upon making these arguments, a final poll was taken in which the votes were split 59% for and 41% against: a close win for non-binding instruments in space law. The debate concluded with closing remarks and much enthusiasm for a follow-up discussion on this important developing topic. 

You might also like