Revisiting the Artemis Accords and their approach to International Space Law
João Marques de Azevedo[1]
Introduction
On 13 October 2020, a group of 8 States, led by the US Government represented by NASA, adopted the Artemis Accords. This group of bilateral agreements are not legally binding; however, they have certainly stirred the pot of the international community with Russia stating that the approach of the Artemis is “too US-centric.”
Since 2020, the first Artemis mission was completed with the SLS (Space Launch System) and the Orion spacecraft proved to be a success, the latter one having broken the Apollo’s record of farthest distance travelled by a craft designed to carry humans. On 3 April 2023, NASA announced the crew of Artemis II, which will fly to near-Moon space and bring the first woman and first person of colour on-board a lunar mission.
The understandable hype and excitement with this new period of space exploration that will bring us back to the Moon and even seek to establish our presence on Mars should not, however, distract us from the issues that still have to be debated with the Artemis Accords. Much is still left to be said, either on their content or the type of approach they represent. As such, whilst the Artemis II crew is now successfully doing their tour, it might be worth to revisit these Accords and analyse their content regarding some key issues.
The Preliminary Aspects
The Artemis Accords, aim to “enhance the governance of the civil exploration and use of outer space” through the adherence to its principles. This is done via political commitment to the Accords “which provide for operational implementation of important obligations contained in the Outer Space Treaty and other instruments.”[2]
They apply to the activities taking place in Moon, Mars, comets, asteroids. This includes their surface and subsurface, as well as lunar orbits, Mars’ orbit, and the Langrangian points of the Earth-Moon system.[3]
Signatory States rely on cooperation, transparency, and interoperability to successfully operate within the Artemis Programme.[4] Part of this includes the sharing of their policies and exploration plans pertaining to space and the sharing of scientific data, making it public “as appropriate, in a timely manner.” Of course, this only applies to the private sector when the latter conducts operations on behalf of a Signatory State.[5]
They underline their obligations under the 1968 Rescue and Return Agreement by committing to render emergency assistance (at least to take all reasonable efforts to do so, which is not that high of a thresh-hold as one could think).[6] The obligations under the Registration Convention are also recalled and Signatories also commit to working with non-Parties to the REG to work out the appropriate means of registration.[7]
They also will pursue the activities under the Accords exclusively for peaceful purposes in accordance with the Outer Space Treaty.[8] Yet, whilst in the OST the demilitarisation is confined to the Moon and other celestial bodies, the Artemis seem to extend it to the orbits and Langrangian points mentioned, therefore adding to the Treaty.
Outer Space Heritage
The Accords introduced a new feature, at least in a political commitment of international projection: the preservation of outer space heritage. Whilst there have been some mentions to scientific preserves (which cannot be said to amount to fundamentally the same thing) in the Moon Agreement,[9] and to cultural heritage sites in the Hague Building Blocks,[10] the Artemis have an entire dedicated section to the topic.
This follows a trend in the U.S. which started with Michelle Hanlon, co-founder of For All Moonkind,[11] who realised that there are currently no rules on the issue and there’s nothing stopping anyone from destroying human legacy in the Moon.[12] Their work has led to the 2020 “One Small Step to Protect Human Heritage in Space Act”. This act highlights the necessity of protecting the Apollo historic lunar landing site artifacts, and for that purpose NASA will seek to implement its 2011 guidelines on “How to Protect and Preserve the Historic Scientific Value of the U.S. Government Lunar Artifacts”, which include measures like “exclusion zones” around some Apollo sites.[13] Since this is to be pursued by NASA in its partnerships, the other Artemis Signatories will also have to respect them.
There are more than 100 landing sites on the Moon, both human and robotic, besides artifacts and other objects left behind by humans (including golf balls – after all, Alan Shephard played golf on the Moon back in 1971). Additionally, this definition of outer space heritage includes “evidence of activity”, which is a very vague term. As such, exactly what heritage is to be protected becomes difficult to assess.
To think that all sites are to be protected and that everything is outer space heritage would be unrealistic. In fact, so far, we do not even have the technology to ensure the protection of these sites, which means that the only measure we can implement is to avoid tampering with them, something which can happen easily if we think that walking in lunar regolith can be like playing tennis in a clay court – hence the need for exclusion zones.
However, it is important also to note that this could come across as an American attempt to establish de facto territorial claims over parts of the lunar surface and its extended occupation.[14] This point is similar to the discussion around safety zones, but we will address that below.
Moreover, one must consider that it is not only American heritage that currently exists in outer space; other countries have had their “firsts” and remarkable endeavours in space exploration. On 23 August 2023, India became the fourth country to reach the Moon, and the first one to reach the lunar south pole; certainly, the Chandrayaan-3 landing site deserves the same standard of protection. Same thing can be said of Russia’s Luna 2 site and China’s Chang’e 3. As such, there’s some potential for a new type of space heritage race with occupational consequences.
There is nothing wrong with protecting outer space heritage; the argument being that it is legally allowed under Article IX. Yet, the point is that we should be selective; of course, the point is to protect human history and these sites deserve preservation, but for most cases an entry into the history books will have to suffice. Once we progressed to that point, the best option is simply to retrieve the artifacts and bring them back to Earth to be studied and displayed in museums.
Space Resources
This is where things start to get interesting (and potentially problematic). In Section 10 of the Accords, space resources are recognised as beneficial for humankind and essential to support safe and sustainable space activities. As such the extraction and utilisation of said resources needs to be done in a manner that is compatible with the Outer Space Treaty.
In this section, the Signatories have affirmed the following:
“[T]he extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.”
With this, the U.S. now aims to extrapolate to the international fora its own interpretation of Art. II of the OST. In fact, since 2015, American law considers that it is lawful, even for privates, to undergo the commercial extraction of space resources. The products of these extractions can be possessed, owned, transported, used and sold.[15]
One interesting thing in the U.S. Commercial Space Launch Competitiveness Act underlines that these activities are to be done in accordance with the U.S. international obligations. The issue is that this interpretation of Art. II is disputed, in fact, there are different interpretations of the provision.[16] As such, it is difficult to understand how the U.S. can affirm that their nationals can own space resources according to American international obligations when these obligations are still subject to different interpretations.[17] After all, this is not an episode of The Office:[18] just like screaming “I declare bankruptcy” is not actually equivalent to the act of declaring bankruptcy (i.e., filling for it), affirming that “this is the interpretation of X article” does not make it the correct interpretation of that provision, unless this is confirmed by a competent authority.
I have written before on issues of the interpretation of Article II[19] and doing it extensively is not the purpose of this post but, in general, three schools of thought can be identified: 1 – the prohibition of “national appropriation” does not mean the prohibition of exclusive property rights exercised by privates; 2 – it entails both prohibitions; 3 – it entails additionally the prohibition of exploitation of space resources.
From the above, the second interpretation seems to be closer to being correct. If one considers that States cannot own outer space or its features, how would they adjudicate property under national law? This also follows Art. VI of the Outer Space Treaty, where States are also considered internationally responsible of the activities of private entities.[20] On the other hand, most scholars defend that space resources activities are permitted under the freedom of use of outer space.[21]
Moreover, considering the Moon Agreement, either for scientific purposes and to support space missions, or for commercial purposes, space resources activities are definitely permitted.[22] Of course, when it comes to the latter purpose, according to the same treaty, without a legal regime and international management system, and equitable sharing mechanisms in place, the commercial exploitation of space resources is not permitted.
In short, looking at Article II it seems more restricting than the Moon Agreement, mostly because it is silent when it comes to the commercial side of space resources and the issue of ownership that it implies. As it is, it generates the prohibition of ownership of outer space, but with the interpretation under Moon Agreement, it is clarified that this prohibition does not apply to extracted resources. All of this is rather ironic if one recalls that the U.S. “does not consider the Moon Agreement to be an effective or necessary instrument to guide nation states regarding the promotion of commercial participation” in space.[23]
Of itself, the Artemis Accords are not incompatible with the Outer Space Treaty in this matter (or even the Moon Agreement), after all, space resources can be extracted and used to support space missions. This means that, for those nations that are also Moon Agreement States Parties, there is currently no conflict. It is the underlying American interpretation (also shared by Luxembourg) regarding the ownership of extracted resources and their commercial use that can be problematic, especially since the Artemis do not mention any of the requirements stipulated in the Moon Agreement. Nonetheless, it can be argued that the practical relevance of this treaty is minimal due to its low number of ratifications.
Safety Zones
Contrary to space heritage sites, despite also not being mentioned in any of the space treaties, safety zones are not a novelty, being found previously in the Hague Building Blocks as an area based safety measure to safeguard space resources activities and avoid harmful interference.[24] In the Accords, they are defined as the “area in which nominal operations of a relevant activity or an anomalous event could reasonably cause harmful interference.”[25]
In theory, they are a legitimate way to uphold Art. IX obligations and respect the prohibition of appropriation. The Accords outline principles to establish and keep this safety zones including notification, exchange of information regarding the extent and nature of operations, and respect for the freedom of access to all areas of celestial bodies. But both the respect for this freedom and the prohibition of appropriation are tied to very vague guidelines pertaining the nature of the operations, size, scope, and duration of safety zones.[26]
The duration of safety zones is, in this aspect, the most important key. It’s worth to notice that exclusive use and ownership exists in outer space, for instance, according to Art. VIII of the Outer Space Treaty, ownership of a space object is not affected by its presence in outer space. Moreover, the ITU allows operators to make exclusive use of the assigned orbital slots until the end of operation of a satellite.[27] Yet, space objects cannot lead to sovereignty or property claims over outer space, including celestial bodies. In the same way, occupying an orbit under the ITU regime does not lead to ownership of that orbit, especially since this does not ammount to permanent occupation.
The Artemis mention that safety zones are temporary and will end when the relevant operation ends. This would respect Art. II, but the issue is that the duration of the safety zone is subject to the duration of the operation. If the operation’s duration is not predetermined, this could be seen as de facto occupation (in short, the issue is similar to exclusion zones and outer space heritage), which would conflict with the Outer Space Treaty. As such, it is practice that will dictate how the Artemis will conform with international space law in this matter, but it is expected that conformity will always be the standard.
Conclusion
As seen, despite the three highlighted issues, the Artemis Accords are in line with international legal principles for outer space, and even considering those topics, the Artemis are, in theory, not even contrary to the Moon Agreement. Still, despite the benefits a new age of space activities can bring to humankind, the problem are the underlying interpretations and national laws that seek to influence State practice and opinio juris (that create customary rules of space law) and may find their way into the Artemis Accords context.
Since it is practice that will reveal how the Accords will ultimately avoid conflict with international space law it shows they follow an adaptive governance approach, like the Hague Building Blocks, instead of an “anticipatory approach”.[28] However, the Accords are more vague and less comprehensive than the Building Blocks (leaving many aspects out), especially when it comes to space resources activities where the Accords say nothing besides mentioning that extracting them is not contrary to Art. II of the Outer Space Treaty.
Moreover, whilst discussion of space law rules is always welcomed, departing from the usual forum for multilateral negotiations – the UN COPUOS – is not a positive development. If other leading spacefaring nations adopts the same modus operandi, we can face fragmentation in the field. When it comes to space resources activities this is highly problematic, as without an internationally negotiated approach there is potential for a resource race which should be avoided.
It is important that all nations commit to multilateralism and preferably seek an international management system and a legal framework to regulate these activities. The International Space Station is a constant reminder of what we can achieve when we work together. If space is to be really for all humankind, we cannot depart from negotiating as humankind.
How to cite
João Marques de Azevedo, “Revisiting the Artemis Accords and their approach to International Space Law”, SPARC Blog, 14 September 2023, available at: https://sparc.cedis.fd.unl.pt/revising-the-artemis-accords-and-their-approach-to-international-space-law/
[1] Coordinator at SPARC – NOVA School of Law. PhD Candidate and FCT Scholarship Holder. Member of the ECSL and Prospective-Member of the IISL.
[2] Section 1.
[3] Idem.
[4] Sections 2, 4 and 5.
[5] Section 8.
[6] Section 6.
[7] Section 7.
[8] Section 3.
[9] Article 7 (3).
[10] Building Block 10 (h), Olavo De O. Bittencourt Neto et al., eds., Building Blocks for the Development of an International Framework for the Governance of Space Resource Activities: A Commentary (The Hague: Eleven International Publishing, 2020), 58–64.
[11] An NGO focused on the protection of outer space heritage. For All Moonkind has a Moon Registry of all the lunar landing sites. For more on their work, visit: https://www.forallmoonkind.org/.
[12] Space Café Podcast, Episode 008: Michelle Hanlon, The legal loophole to remove American flags on the Moon, August 2020, available on Spotify.
[13] According to these guidelines, an exclusion zone “is the recommended boundary areas into which visiting spacecraft should not enter”, A1-9, p. 9. “NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts”, 20 July 2020. Available at: https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC_SITES_RevA-508.pdf
[14] Balázs Bartóki-Gönczy and Boldizsár Nagy, “Introductory Note to the Artemis Accords,” International Legal Materials, 2023, 3, https://doi.org/10.1017/ilm.2023.17.
[15] Sec. 402 of Public Law No: 114-90 of 25 November 2015, also known as the U.S. Commercial Space Launch Competitiveness Act, available at: https://www.congress.gov/bill/114th-congress/house-bill/2262
[16] Bartóki-Gönczy and Nagy, “Introductory Note to the Artemis Accords,” 2.
[17] Philip De Man, “Luxembourg Law on Space Resources Rests on Contentious Relationship with International Framework,” 2017, 14.
[18] Season 4, Episodes 7 and 8.
[19] João Marques de Azevedo, “The Principle of Common Heritage of Humankind in the Law of the Outer Space” (NOVA School of Law, 2021), 51–56.
[20] Alexander Soucek, “3.4.1 International Law,” in Outer Space in Society, Politics and Law, ed. Christian Brünner and Alexander Soucek (Springer-Verlag/Wien, 2011), 316.
[21] Stephan Hobe, “Article I,” in Cologne Commentary on Space Law: Volume I, ed. Stephan Hobe et al. (Berliner Wissenschafts-Verlag, 2017), 195. Frans von der Dunk, “2. International Space Law,” in Handbook of Space Law, ed. Frans von der Dunk and Fabio Tronchetti (Edward Elgar Publishing Limited, 2015), 57.
[22] Articles 7 and 11 of the Moon Agreement.
[23] Sec. 2, Executive Order 13914 of 6 April 2020, “Encouraging International Support for the Recovery and Use of Space Resources”, available at: https://www.federalregister.gov/documents/2020/04/10/2020-07800/encouraging-international-support-for-the-recovery-and-use-of-space-resources.
[24] 11 (3), De O. Bittencourt Neto et al., Building Blocks for the Development of an International Framework for the Governance of Space Resource Activities: A Commentary, 65.
[25] Section 11, 7.
[26] Bartóki-Gönczy and Nagy, “Introductory Note to the Artemis Accords,” 3.
[27] Edith Walter, “4.1 The Privatisation and Commercialisation of Outer Space,” in Outer Space in Society, Politics and Law, ed. Christian Brünner and Alexander Soucek (Springer-Verlag/Wien, 2011), 406–7.
[28] Rossana Deplano, “The Artemis Accords: Evolution or Revolution in International Space Law?,” International and Comparative Law Quarterly 70, no. 3 (2021): 814.