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

Piggy backing off of the Competitiveness Act, in 2020, the United States launched the Artemis Accords. 318 When the Accords were initially launched there were 8 members to the Accords, Luxembourg, the UAE, and Japan being among them. 319 As of the time of this writing there are 31 members. 320 The United States Artemis Accords in based in the OST but also as principles to guide the 21 st century of space exploration. 321 In the Accords, among other provisions, speak to the extraction of space resources and the agreement by members that said extraction does not constitute an appropriation under the Article 2 of the OST. 322 The debate for the purposes of this article goes back to those thirty words and whether or not parties to the OST can square the circle between honoring Article 2 regarding non-appropriation and their domestic legislation. To do that, Article 2 needs to be examined more closely. 3. Interpretation of Article 2 of the OST The starting point for clarifying treaties and their provisions is the Vienna Convention on the Law of Treaties (VCLT). 323 The VCLT is considered customary international law which the International Court of Justice recognized in the 1994 Libya/ Chad case. 324 This following analysis will look at the purpose, ordinary meaning, and state practice as the means of interpreting Article 2 of the OST. Article 31(2) spells out the process of interpretation of the purpose of a treaty. Article 31(1) of the VCLT states “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and Article 31(3)(b) also allows treaties to be interpreted by examining state practice subsequent to the conclusion of the treaty. a) The Purpose of the Treaty The purposes of the OST can be derived from examining the documents submitted by the parties prior to completion of the treaty along with knowledge of the events at the time and by examining the preamble. The OST was seen as a needed bulkhead during the Cold War when the two nuclear superpowers, the USSR and the United States, were beginning to extend their influence into outer space. This can be seen in the initial letters between the United States and the USSR emphasizing the need for peaceful and joint cooperation in space and the desire to keep weapons from being used and placed there. 325 These ideas then made it into the preamble of the OST by recognizing the common interests of human kind, the exploration and the use for peaceful purposes, 318 ‘The Artemis Plan, NASA’s Lunar Exploration Program Overview’ (September 2020) accessed 4 November 2023, p. 8. 319 Ibid. 320 Accords homepage, accessed 5 November 2023. 321 accessed 5 November 2023. 322 The Artemis Accords Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars,

Comets, and Asteroids for Peaceful Purposes (2020), para 10. 323 Vienna Convention on the law of Treaties (1969), vol. 1155.

324 ICJ Territorial Dispute Libyan Arab Jamahiriya/Chad , Judgement [1994] ICJ Rep 1994. 325 U.N. Doc. A/AC.105/C.2/L.12 (USA) and U.N. Doc. A/AC.105/C.2/L.13 (USSR).

86