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Signatories of the U.S.-Led Artemis Accords Meet in Person for the First Time

Published online by Cambridge University Press:  25 January 2023

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Abstract

Type
Oceans, Environment, and Sciences
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press for The American Society of International Law

On September 19, 2022, representatives of the twenty-one Artemis Accords signatories met at the International Astronautical Congress in Paris for the agreement's first in-person meetingFootnote 1 since its launch on October 13, 2020.Footnote 2 Drafted by the United States, the Accords “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program.”Footnote 3 “With the Artemis Accords,” Secretary of State Antony J. Blinken declared in November 2022, “the Department of State and NASA are bringing nations together through a common set of principles grounded in the 1967 Outer Space Treaty to guide civil space exploration, and set the stage for peaceful, responsible, and productive cooperation in outer space.”Footnote 4 Although the provisions of the Accords—by its terms a “political commitment”Footnote 5—are non-binding (other than those restating existing international law), commentators and critics, including U.S. international partners, geopolitical opponents, and space law jurists, have argued that the Accords attempt to establish a consensus on a U.S.-friendly interpretation of international space law, particularly regarding the ownership of space-based resources. While U.S. allies largely support the Accords, critics—especially China and Russia—have accused the United States of using the Accords to consolidate an understanding of international space law that favors U.S. commercial interests. Critics have also attacked the Accords for attempting to develop international space law outside of the traditional multilateral forum for such discussions and lawmaking, the United Nations. Even though the September meeting was “primarily an organizational one, with no major announcements or other findings emerging from it,” it signaled the increasing significance of the Accords in a new era of international space law.Footnote 6 As Jennifer Littlejohn, principal deputy assistant secretary of state for oceans and international environmental and scientific affairs, noted, the meeting was “just the start of the conversation.”Footnote 7

The Artemis Accords’ scope encompasses “civil space activities conducted by the civil space agencies of each Signatory . . . [that] take place on the Moon, Mars, comets, and asteroids, including their surfaces and subsurfaces, as well as in orbit of the Moon or Mars, in the Lagrangian points for the Earth-Moon system, and in transit between these celestial bodies and locations.”Footnote 8 Signatories commit to ten principles “intended to increase the safety of operations, reduce uncertainty, and promote the sustainable and beneficial use of space for all humankind”: “peaceful purposes” (Sec. 3), “transparency” (Sec. 4), “interoperability” (Sec. 5), “emergency assistance” (Sec. 6), “registration of space objects” (Sec. 7), “release of scientific data” (Sec. 8), “preserving our space heritage” (Sec. 9), “space resources” (Sec. 10), “deconfliction of space activities” (Sec. 11), and “orbital debris” (Sec. 12).Footnote 9 The agreement “affirm[s] the importance of compliance with” four of the five UN space law treaties (the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, and the Registration Convention, omitting the Moon Agreement), as well as “the benefits of coordination via multilateral forums . . . to further efforts toward a global consensus on critical issues regarding space exploration and use.”Footnote 10 Joining the Accords grants signatories the opportunity to collaborate with partners on NASA's Artemis Program—the successor to Apollo—which seeks to put the first woman and first person of color on the Moon and establish a foundation for human missions to Mars and beyond.Footnote 11

The Accords’ focus on manned space exploration and the utilization of space-based resources reflects the priorities of contemporary U.S. space policy. In November 2015, President Barack Obama signed the U.S. Commercial Space Launch Competitiveness Act (Title I of which is called the Spurring Private Aerospace Competitiveness and Entrepreneurship Act or SPACE Act), which directed the president to “facilitate commercial exploration for and commercial recovery of space resources by United States citizens” and provided that “[a] US citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained.”Footnote 12 In April 2020, as the Accords were being drafted, President Donald J. Trump issued an executive order reaffirming the U.S. view that space is not a “global commons” and encouraging “international support for the public and private recovery and use of resources in outer space, consistent with applicable law.”Footnote 13 The order directed “the Secretary of State [to] seek to negotiate joint statements and bilateral and multilateral arrangements with foreign states regarding safe and sustainable operations for the public and private recovery and use of space resources.”Footnote 14 Consistent with this, one of the goals of Trump's National Space Policy was to “[e]xtend human economic activity into deep space by establishing a permanent human presence on the Moon, and, in cooperation with private industry and international partners, develop infrastructure and services that will enable science-driven exploration, space resource utilization, and human missions to Mars.”Footnote 15 The Biden administration's United States Space Priorities Framework reaffirmed this approach.Footnote 16

The Artemis Accords innovate in two ways: one substantive, the other procedural. Consistent with U.S. policy, they seek to establish a framework for the utilization of space resources on the moon and beyond. To do so, the Accords interpret core space law treaties and set out new space law principles. Most importantly, the Accords assume the legality of extracting space resources, asserting that extraction “does not inherently constitute national appropriation under Article II of the Outer Space Treaty[,] [which provides that “[o]uter 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”].”Footnote 17 With that principle asserted, the Accords endeavor to provide secure conditions for resource extraction by introducing two new concepts: “deconfliction” and “safety zones.”Footnote 18 Deconfliction refers a range of commitments designed to avoid detrimental interactions in space, including “due regard” and “harmful interference” (both found in Article IX of the Outer Space Treaty) and safety zones. Safety zones are “area[s] wherein . . . notification [of activities to others] and coordination [with any relevant actor] will be implemented to avoid harmful interference.”Footnote 19 Though not prohibited by the Outer Space Treaty, the aims of these principles are in tension with the treaty's prohibition on “national appropriation,” particularly as interpreted by states who take a collectivist approach to space law.

The Accords are also an attempt to develop the law unilaterally. They were drafted and finalized by the United States, and so even though they are agreed to by the states that sign them, they reflect U.S. positions. The need for new rules to govern the Artemis program is evident. A U.S. delegate explained: “As we move towards longer-term, more complicated operations on the Moon and beyond, the United States recognizes that these operations pose new legal and policy work. In an attempt to develop a common framework for these activities amongst Artemis Program partners, we developed the Artemis Accords, a non-binding set of principles that set out how we will implement our obligations under the Outer Space Treaty as we live and work together in space.”Footnote 20 While the Accords stress multiple times that specific provisions are to be undertaken “in a manner that complies with,” “in accordance with,” or “consistent with” the Outer Space Treaty, three times the signatories acknowledge that they are “implementing” that treaty or its obligations.Footnote 21 And though the signatories indicate that they merely wish to “establish a political understanding regarding mutually beneficial practices,” they also commit to “implement[] the principles contained in the[] Accords” in the arrangements and instruments they enter into between themselves as well as “through their own activities.”Footnote 22 Indeed, at the first in-person meeting of the Accords’ signatories, Littlejohn promoted them “as an opportunity for countries to help set ‘rules of the road’ for space exploration. ‘The message is sign up, take your seat at the table and be a part of shaping that and thinking through that.’”Footnote 23 A NASA spokesperson affirmed to a media outlet that this was a goal of the Accords, stating that “Even if some countries cannot make near-term contributions to lunar activities directly, their support of the Artemis Accords principles will strengthen the need for common values for space exploration and utilization among the international community.”Footnote 24

This approach to the prescription of policy is unusual, as traditionally space law has been discussed, elaborated, and codified through the work of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Not confident that COPUOS would adopt the same principles regarding the utilization of space resources, Artemis signatories intend to develop practices first and bring them to the committee later. The Accords provide: “The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resources, including through ongoing efforts at the COPUOS.”Footnote 25 The NASA spokesperson was more direct: “By bringing as many signatories onboard as early as possible, our hope is to develop a body of knowledge, informed by collective operational experiences, that will advance broader goals through established bodies such as [COPUOS].”Footnote 26

The Artemis Accords have been criticized—especially by America's geopolitical rivals, China and Russia, who in March 2021 signed a memorandum of understanding on “Construction of the International Lunar Research Station.”Footnote 27 In 2020, Dmitry Rogozin, then director general of Roscosmos, the Russian space agency, stated that Russia would not sign the Accords as they were “too U.S.-centric.”Footnote 28 Indeed, Roscosmos, the Russian space agency, noted that “attempts to expropriate outer space and aggressive plans to actually take over other planets” would deter international cooperation.”Footnote 29 Rogozin tweeted: “The principle of invasion is the same, whether it be the moon or Iraq: A ‘coalition of the willing’ is created, and then, bypassing the U.N. and even NATO if anyone is doubtful, it's onward to the goal.”Footnote 30 Russia in its statement at the March 29, 2022 meeting of the legal subcommittee of COPUOS specifically criticized the Artemis Accords' treatment of outer space resources. “Of particular concern,” the Russian statement said, “are attempts by certain space actors to legalize at the national level the appropriation of extracted mineral space resources and to enshrine a special legal regime for mined areas of celestial bodies by establishing ‘security zones’ on them.”Footnote 31 These attempts are improper because “the legal process takes place outside the conventional framework, using bilateral treaties, non-binding soft law instruments, domestic law, and reinterpretation of existing norms enshrined in the core agreements of international space law.”Footnote 32 Fragmentation of international space law will result from these “[u]nilateral actions by States to interpret international space law in the area of space exploration and [the] use of space resources.”Footnote 33

Chinese sentiment toward the Accords has been similarly negative.Footnote 34 Song Zhongping, a Chinese military and aerospace commentator, likened the Accords to the enclosure movement in eighteenth-century Britain, during which common land was privatized for the benefit of the wealthy.Footnote 35 At the same March COPUOS meeting the Chinese representative stressed the importance of the Outer Space Treaty and pointed out that the treaty required that “the exploration and use of outer space should be for the benefit of all countries” and that “countries must not appropriate outer space, including the moon and other celestial bodies, for their own.”Footnote 36 Referring to the “current practice . . . that individual countries sign agreements to formulate rules applicable to each other on the development and utilization of space resources and related activities,” the Chinese representative said that “[i]n space resource activities, any interpretation and application of the provisions of the Outer Space Treaty, as well as the development of relevant rules, should comply with the legal framework established by the Outer Space Treaty, which addresses the rights and concerns of all States parties.”Footnote 37 Consequently, “it is particularly important to conduct discussions under the framework of the United Nations with genuine multilateralism.”Footnote 38

In June 2021, COPUOS's legal subcommittee established a working group on the legal aspects of space resource activities, and its mandate was endorsed that September by the full committee.Footnote 39 In March 2022, as the working group was finalizing its five-year workplan and methods of work, the United States made clear its opposition to the negotiation of an international agreement to regulate space resources. The head of the U.S. delegation explained: “Of course, the Outer Space Treaty does not provide a comprehensive international regime for space resource utilization activities. At this stage, the United States sees neither a need nor a practical basis to create such a regime. We do, however, see an urgent need to ensure that all nations engaged in space resource activities share a common set of fundamental beliefs: in the rule of law, in transparency, and in peaceful purposes. The Artemis Accords underscores these critical principles, and forms the starting point for future work on space resources.”Footnote 40

References

1 U.S. Dep't of State Press Release, First Meeting of Artemis Accords Signatories (Sept. 19, 2022), at https://www.state.gov/first-meeting-of-artemis-accords-signatories [https://perma.cc/CYR8-VA85]. The twenty-one signatories included: Australia, Bahrain, Brazil, Canada, Colombia, France, Israel, Italy, Japan, Luxembourg, Mexico, New Zealand, Poland, the Republic of Korea, Romania, Saudi Arabia, Singapore, Ukraine, the United Arab Emirates, the United Kingdom, and the United States. On December 13, 2022, Nigeria and Rwanda signed the Accords, bringing the total number of signatories to twenty-three. See U.S. Dep't of State Press Release, Nigeria and Rwanda: First African Nations Sign the Artemis Accords (Dec. 13, 2022), at https://www.state.gov/nigeria-and-rwanda-first-african-nations-sign-the-artemis-accords [https://perma.cc/V4AB-GE8T].

2 See Sean Potter & Cheryl Warner, NASA, International Partners Advance Cooperation with First Signings of Artemis Accords (Oct. 13, 2020), at https://www.nasa.gov/press-release/nasa-international-partners-advance-cooperation-with-first-signings-of-artemis-accords [https://perma.cc/ZUA3-27JJ]; see also NASA Video, NASA and International Partners Sign Artemis Accords, YouTube (Oct. 13, 2020), at https://www.youtube.com/watch?v=PkVxAJpb3Bk. NASA Administrator Jim Bridenstine announced the Artemis Accords on May 15, 2020, shortly after media outlets reported that the Trump administration was drafting a “pact for moon mining.” See Jeff Foust, NASA Announces Artemis Accords for International Cooperation in Lunar Exploration, SpaceNews (May 15, 2020), at https://spacenews.com/nasa-announces-artemis-accords-for-international-cooperation-in-lunar-exploration [https://perma.cc/G6FD-LRWF]; Joey Roulette, Trump Administration Drafting “Artemis Accords” Pact for Moon Mining – Sources, Reuters (May 5, 2020), at https://www.reuters.com/article/us-space-exploration-moon-mining-exclusi/exclusive-trump-administration-drafting-artemis-accords-pact-for-moon-mining-sources-idUSKBN22H2SB.

3 The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, Sec. 1 (Oct. 13, 2020), at https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf [https://perma.cc/V6PY-SSV2] [hereinafter Accords].

4 U.S. Dep't of State Press Release, Artemis I Advances International Cooperation, Inspires Next Generation (Nov. 16, 2022), at https://www.state.gov/artemis-i-advances-international-cooperation-inspires-next-generation [https://perma.cc/HB6W-C8LK].

5 Accords, supra note 3, Sec. 1.

6 Jeff Foust, Artemis Accords Signatories Hold First Meeting, SpaceNews (Sept. 21, 2022), at https://spacenews.com/artemis-accords-signatories-hold-first-meeting [https://perma.cc/NH4D-3WKZ].

7 Id. (quoting Littlejohn).

8 Accords, supra note 3, Secs. 1, 3–12.

9 Id.

10 Id., pmbl. The four treaties are: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205 (entered into force Oct. 10, 1967); Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 UST 7570, 672 UNTS 119 (entered into force Dec. 3, 1968); Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 UST 2389, 26 UN GAOR Supp. (No. 29), at 25, UN Doc. A/8429 (1972) (entered into force Oct. 9, 1973); Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 UST 695, TIAS No. 8480, 29 UN GAOR Supp. (No. 31), at 16, UN Doc. A/9631 (1975) (entered into force Sept. 15, 1976).

12 U.S. Commercial Space Launch Competitiveness Act, Sec. 402, Pub. L. 114–90, 129 Stat. 704, 721 (Nov. 25, 2015), at https://www.congress.gov/114/statute/STATUTE-129/STATUTE-129-Pg704.pdf [https://perma.cc/4LPA-L2NH] [hereinafter SPACE Act].

13 Exec. Order 13914, Secs. 1, 3, 85 Fed. Reg. 20,381 (Apr. 6, 2020), at https://www.govinfo.gov/content/pkg/FR-2020-04-10/pdf/2020-07800.pdf [https://perma.cc/5TPA-6PFS].

14 Id., Sec. 3.

15 National Space Policy of the United States of America 5 (Dec. 9, 2000), at https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/12/National-Space-Policy.pdf [https://perma.cc/UJT6-B4HX].

17 Accords, supra note 3, Sec. 10(2).

18 Id., Sec. 11.

19 Id., Sec. 11(7).

20 Statement by the U.S. Head of Delegation, Mr. Gabriel Swiney, on Agenda Item 3, “General Exchange of Views” (June 2, 2021), at https://www.unoosa.org/documents/pdf/copuos/lsc/2021/statements/item_3_USA_ver.2_3_June_AM.pdf [https://perma.cc/E6CD-R774].

21 Accords, supra note 3, pmbl., Secs. 1, 11(7).

22 Id., Secs. 1, 2(1).

23 Foust, supra note 6.

24 Elizabeth Howell, Artemis Accords: Why the International Moon Exploration Framework Matters, Space.com (Aug. 25, 2022), at https://www.space.com/artemis-accords-moon-space-exploration-importance [https://perma.cc/ZR2L-QSHR].

25 Accords, supra note 3, Sec. 10(4).

26 Howell, supra note 24.

27 See China and Russia Sign a Memorandum of Understanding Regarding Cooperation for the Construction of the International Lunar Research Station (Mar. 9, 2021), at http://www.cnsa.gov.cn/english/n6465652/n6465653/c6811380/content.html.

28 Alexander Stirn, Do NASA's Lunar Exploration Rules Violate Space Law?, Sci. Am. (Nov. 12, 2020), at https://www.scientificamerican.com/article/do-nasas-lunar-exploration-rules-violate-space-law [https://perma.cc/J9EX-6BKR] (quoting Rogozin).

29 Russia Compares Trump's Space Mining Order to Colonialism, Moscow Times (Apr. 7, 2020), at https://www.themoscowtimes.com/2020/04/07/russia-compares-trumps-space-mining-order-to-colonialism-a69901 [https://perma.cc/48PE-L9U9].

30 Leonard David, NASA Proposes New Rules for Moon-Focused Space Race, Sci. Am. (May 21, 2020) (quoting Rogozin), at https://www.scientificamerican.com/article/nasa-proposes-new-rules-for-moon-focused-space-race [https://perma.cc/R4UU-57TQ].

31 Выступление делегации Российской Федерации по пункту 15 «Общий обмен мнениями о возможных моделях правового регулирования деятельности по исследованию, освоению и использованию космических ресурсов» [Statement by the Delegation of the Russian Federation on Item 15 “General Exchange of Views on Possible Models for the Legal Regulation of Research, Development and Space Resources Utilization”] (Mar. 29, 2022), at https://www.unoosa.org/documents/pdf/copuos/lsc/2022/Statements/15_Russian_Federation_29_March_AM.pdf [https://perma.cc/9YKH-22GY].

32 Id.

33 Id.

34 Under U.S. law, NASA cannot work with China. See Department of Defense and Full-Year Continuing Appropriations Act, 2011, Sec. 1340(a), Pub. L. 112-10, 125 Stat. 38, 123 (Apr. 15, 2011). This provision has been included in subsequent appropriations acts.

35 Deng Xiaoci, Trump Administration's “Artemis Accords” Expose Political Agenda of Moon Colonization, Show Cold War Mentality Against Space Rivals: Observers, Glob. Times (May 7, 2020), at https://www.globaltimes.cn/content/1187654.shtml [https://perma.cc/EQ5N-QAUP]; see also 特朗普盯上月球!起草阿尔忒弥斯协议,准备“圈地”采矿立规矩! [Trump Is Eyeing the Moon! Draft the Artemis Agreement and Prepare for the “Enclosure” Mining Rules!], CCTV.com, at https://v.cctv.com/2020/05/07/VIDEKl9vLRJIDOJgL92sVBsW200507.shtml [https://perma.cc/25V7-KU42].

36 潜在法律模式的⼀般意见交流”议题的发⾔ [Statement on the Topic of “General Exchange of Views on Potential Legal Models”], at https://www.unoosa.org/documents/pdf/copuos/lsc/2022/Statements/29MarAM/Item15/15_China_.pdf [https://perma.cc/3YGG-2YP7].

37 Id.

38 Id.

39 Report of the Legal Subcommittee on its Sixtieth Session, Held in Vienna from 31 May to 11 June 2021, para. 255, UN Doc. A/AC.105/1243 (June 24, 2021); Report of the Committee on the Peaceful Uses of Outer Space, para. 221, Annex III, UN Doc. A/76/20.

40 U.S. Mission to International Organizations in Vienna, 2022 COPUOS LSC – U.S. on the Utilization of Space Resources (Mar. 28, 2022), at https://vienna.usmission.gov/2022-copuos-lsc-u-s-on-space-resources [https://perma.cc/26ZM-HNMT].