15/08/2024
Temperatures during a Lunar night can plunge to as low as minus 130 degrees Celsius. However, even in this unforgiving terrain and following a tilted landing, Japan’s SLIM lander (nicknamed the Moon-sniper) woke up after a third gruelling lunar night at the end of April of this year – yet another lunar night that it was not expected to survive. Although SLIM failed to check in at the end of May, Japan’s lunar lander has demonstrated an outstanding resilience that has defied expectations. Quite the achievement for Japan which became only the fifth country to achieve a soft landing on the moon.
Japan’s achievements in the field of Space are not just limited to solving technical problems, but legal ones as well. In fact, at the end of May this year, The United Nations Office for Outer Space Affairs (UNOOSA) and Japan began a collaboration project to assist the Philippines and Thailand in drafting national space legislation and policies.
Japan only enacted their first national law containing provisions regarding the development and use of outer space in their Basic Space Law in May 2008. However, since then, Japan became one of the eight original signatories to the Artemis Accords, enacted their The Space Activities Act in 2016, and brought The Space Resources Act into force in December 2021.
Through enaction of The Space Resources Act, Japan became only the fourth country with national legislation regarding space resources, joining the US, Luxembourg and the UAE.
Article 2, item 1 of the Space Resources Act defines space resources “as water, minerals, and other natural resources that exist in outer space, including on the moon and other celestial bodies”. Article 5 includes a crucial provision that the person who obtained the (space resources extraction) permit owns the space resources that the person exploits (in accordance with the approved activity plan). In other words, upon approval from the Japanese government, Japan’s companies may extract, use but critically also own material obtained from the boundless resource mine of Space.
Soon after, according to a press release on 8th November 2022, the global lunar exploration company iSpace, inc. headquartered in Japan announced that they had received the very first license from the Japanese Government under the Space Resources Act. Japan’s Minister of State for Space Policy at the time noted that the transfer of ownership of the lunar regolith collected from the Lunar surface to NASA would “be the first case in the world of commercial transactions of space resources on the Moon by a private operator”.
Although, iSpace’s initial lunar landing attempts have not yet been successful, iSpace has been busy raising money to fund a new lander, a lander that will also carry a repository of human language and culture treasures as a symbol of hope for human unity.
There is a question, however, on how this all fits with the harmonisation enacted by Article II of the Outer Space Treaty of 1967, of which Japan is a party. This Article recites that “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”. The wording of this Article, particularly regarding sovereignty, does not explicitly forbid ownership of extracted space resources. However, there is clearly work to be done to reach a unifying international legal framework that settles the question of what ‘sovereignty’ really means when it comes to space. The Artemis Accords, currently signed by only 43 countries, attempted to bring about uniformity and practically implement the Outer Space Treaty (see our previous blog here). However, there continues to be concern that the Accords, which in section 11 discuss the effective temporary claiming of territory in space to “deconflict” space activities, coupled with developments in national space law, such as those in Japan, are contrary to the Outer Space Treaty’s fundamental statement on sovereignty.
This is clearly an unanswered question and there is no doubt that more work needs to be done across all nations to come to a conclusion about how to protect the work performed by private companies, including not only space resources but also crucially intellectual property for which the status of extra-terrestrial actions lies in a zone of legal ambiguity (see our blog here) – whilst keeping to international legal obligations.
Japan must be applauded for its world leading developments in national space law, but as it stands there appears to be no panacea for the deficiencies that stand in the way of a truly unified legal framework in Space, without ignoring the understandable desire of many private companies to hold on to the resources, advancements and intellectual property that they have worked so hard to obtain. This problem will be solved hopefully in the near future, and Japan will likely be one of the Global leaders that helps banish this legal uncertainty forever.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
