As the First Country to Land on the Moon’s South Pole, Should India also be the First Space Power to Ratify the Moon Agreement?

Introduction

23 August 2023 will be etched in gold in not only India’s but humankind’s progress in outer space exploration.  India has become the first country to successfully land a spacecraft on the moon’s south pole and only the fourth country ever to land on the moon.  The other three countries are the U.S., Russia (including the former Soviet Union), and China. Since 1969 – when Neil Armstrong first set foot on the moon – until now no country has attempted to exploit the moon’s resources.  However, it would be far-fetched to assume that none have wanted to exploit the moon.  That may be because they were limited in their ability to do so by existing science and technology.   

Although it is now one of the world’s major space powers, India does not through its foreign policy endorse commercialization of the moon.  That is perhaps why India signed the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) forty years ago – in 1982.  Indeed, India is also the only country amongst that have landed on the moon that is a signatory to the Moon Agreement.  The Moon Agreement is an international space law instrument to regulate activities of States on the moon and other celestial bodies within the framework of the United Nations (UN).  The Moon Agreement aims to strike a balance between ‘exploration’ and ‘exploitation’ of the moon and other celestial bodies (not for commercial purposes).  However, India has not yet ratified it.  Therefore, it does not have the obligations placed on the parties of the Moon Agreement.

What makes India’s position more puzzling is that India has also signed the Artemis Accords in June 2023.  The Artemis Accords are a set of non-binding guidelines to regulate commercial activities in space – including the moon – primarily facilitated by the U.S. outside of the UN.  As discussed below, there appears to be a tension between the two instruments and India’s international legal position therefore is not clear.

None of the other three countries that have landed on the moon have adopted this dual position.  Moreover, many countries have refused to sign the Artemis Accords.  Experts have explained that it is because the Accords are “outside of the ‘normal’ channels of international space law, such as the UN Committee on the Peaceful Uses of Outer Space – which will be a cause of consternation for some states,” and, unlike the Moon Agreement, the Artemis Accords have been criticized as being a tool to exploit the moon’s resources.India’s statements about the moon landing adds to the uncertainty about its position.  Consistent with the principles of the Moon Agreement, Indian media has reported that the purpose of the Vikram Lander and Rover Pragyan’s soft landing is to “provide data to the scientific community on the properties of lunar soil and rocks, including chemical and elemental compositions.” 

As per the website of the Indian Space Research Organisation (ISRO), the Chandrayaan-3 spacecraft will:

“[M]easure the near-surface plasma (ions and electrons) density and its changes with time; carry out the measurements of thermal properties of the lunar surface near-polar region; ensure seismicity around the landing site and delineating the structure of the lunar crust and mantle; derive the chemical Composition and infer mineralogical composition to further our understanding of Lunar-surface, and will determine the elemental composition of Lunar soil and rocks around the lunar landing site.”

A NASA study has revealed that the moon’s south pole might have water (or its traces).  Thus, in the pursuit of finding water, India made a soft landing on the moon’s south pole, despite the south pole’s “dust, rocks, and uneven terrain”, which is not very conducive for landing.    Collecting traces of water from the moon is an exciting prospect and could open new possibilities for human exploration of space.  Water on the moon could – by way of example – be used for air and water propellants, particularly for longer interplanetary missions.  The moon could act as a pitstop for refueling, among other uses of such discoveries.

It is therefore a crucial juncture for India to reaffirm, not just politically (which it has been doing), but also legally, that it sides with Moon Agreement and is only interested in exploring (not exploiting) the moon’s south pole.  India can do so by ratifying the Moon Agreement, which will supersede any of India’s obligations under the non-binding Artemis Accords.

The Purported Tension Between the Moon Agreement and Artemis Accords

The regime of outer space law is primarily composed of five instruments.  The (i) Outer Space Treaty is first of these treaties, governing the overarching space law principles.  Then, there are four other specific instruments, viz., (ii) the Rescue and Return Agreement (of astronauts), (iii) the Liability Convention, and (iv) the Registration Convention (of space objects) and (v) the Moon Agreement (commonly collectively referred to as corpus juris spatialis). 

The Moon Agreement was adopted by a resolution of the UN General Assembly in 1979.  It is comprised of 21 Articles and its object and purpose is to strike a balance between ‘exploration’ and ‘exploitation’ of the moon and other celestial bodies. 

The Artemis Accords of 2020 are very different from the Moon Agreement.  These are a non-binding multilateral arrangement between the U.S. government and other governments (including India) participating in the Artemis program, an American-led effort to return humans to the moon by 2025.  NASA’s Artemis program’s website notes:

“We will collaborate with our commercial and international partners to establish the first long-term human-robotic presence on and around the Moon.”

Commercialization of space was not the objective of the Moon Agreement.  In contrast, Section 10 of the Artemis Accords, titled Space Resources, in its relevant part reads: 

“[…] The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty […]”

However, setting up extraction sites on a large scale for commercial purposes will have a de facto effect of ‘national appropriation’ the moon.  Article II of the Outer Space Treaty prohibits this and reads:

“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Further, in alignment with the underlying objective of the Outer Space Treaty, Article 4(1) of the Moon Agreement specifically notes:

“The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.  Due regard shall be paid to the interests of present and future generations […]”

It appears that the Artemis Accords are in tension with these principles.  It has been argued that,if commercial actors start mining resources from the moon (something that the U.S. has already done with respect to asteroids under laws passed in 2015), this will “sit uneasily” with the concept of common heritage of mankind.  The Artemis Accords aim to facilitate a framework to “mine resources on moon in [the] next decade”.  This is inconsistent with the Moon Agreement, which denounces commercial exploitation – such as mining – on the moon.

The U.S., as an architect of the Artemis Accords and a non-signatory of the Moon Agreement may still be able to adopt such a position.  However, since India is a signatory of the Moon Agreement, it is difficult to justify its simultaneous signing of the Artemis Accords.   

Commentators have noted in the context of Article 4 of the Moon Agreement that signatories to the Moon Agreement [including India] have to “consider the possible repercussions of their actions in space and their effect both on the present and future generations’ quality of life.”  Of the five space treaties, such phraseology is unique only to the Moon Agreement.

That is to say, purely commercial activities for profit contradict the Moon Agreement.  Thus, India’s signing of the Artemis Accords may contradict its obligations as a signatory to the Moon Agreement.

Indeed, it is notable that, while the Artemis Accords in the preambulatory part ‘affirm the importance’ of the other four space treaties (i.e., the Outer Space treaty, the Rescue and Return Agreement, the Liability Convention, and the Registration Convention), they conspicuously omit affirming the Moon Agreement. 

Therefore, if a position of non-exploitation of the moon is to be adopted by a spacefaring nation such as India, the way to do so is by ratifying the Moon Agreement.  Article 11 of the Moon Agreement calls upon “States Parties […] [to] establish an international regime to exploit its natural resources”.  If such a non-commercial regime of the moon’s exploration is negotiated by the neutral UN space system, i.e., facilitated by the UNOOSA or UN COPOUS, it will enjoy more credibility and enforceability.  Among the moon-faring nations, India is now in a unique position to spearhead such a UN-mandated non-Artemis regime.  However, to activate an Article 11 mechanism, India ought not to just be a signatory, but a “state party” to the Moon Agreement.  In accordance with Article 18 of the Vienna Convention on the Law of Treaties, a signatory to a treaty needs only to respect the ‘object and purpose’ of a treaty; it is not bound by the treaty – an obligation upon the ratifying parties to the treaty.  By ratifying the Moon Agreement, India can add another feather to its cap, in its list of firsts in space exploration.

Conclusion: Opportune Moment for India to Ratify the Moon Agreement

India’s consistent position has been the promotion of the concept of “common heritage of mankind” – a strong tenet of corpus juris spatialis.  Neither India’s actions nor any of its foreign or domestic space policies contradict the Moon Agreement.  However, India’s recent signing of the Artemis Accords may contradict its position.

While India does not have space legislation, the Indian Space Policy 2023 recently released by the ISRO, described in its preamble as “an overarching, composite and dynamic framework” regulating space, does not endorse commercial exploitation of the moon.  Therefore, there appears to be no apparent reason why India should not ratify the Moon Agreement.

As India created space history on the moon’s south pole, India’s Prime Minister heralded this landing as a “success for humanity”.  Many in India consider the moon as holding spiritual and cultural values.  These values are reflected in its foreign policy.  This year is particularly significant for India; India holds the G20 presidency.  The theme of its presidency is “One Earth, One Family, One Future”, which again is consistent with India’s general foreign policy, where it often uses the term ‘Vasudhaiva Kutumbakam’ (meaning – ‘the world is one family’).  Such values echo the principle against commercial exploitation in the Moon Agreement.

Drawing a parallel with India’s nuclear policy, i.e., “no first use”, India’s general international position is not of using its nuclear or space prowess to strong arm other countries, but to contribute to sustainable development of current and future generations.

By ratifying the Moon Agreement, India can politically make its intentions with regard to the moon clearer to the world.  Not only will it then be the first to explore the south pole, but it will first have done so without seeking to exploit it.

By making its altruistic intentions known, India, a major G20 and G4 power can play a leadership role in encouraging others to follow suit by promoting sustainable space exploration.