The Artemis Accords
The United States has now outlined the core principles upon which their proposed ‘Artemis Accords’ will be based. This proposal comes on the heels of President Trump’s Executive Order on space resources, and, as the name would imply, is linked to the broader US effort to return to the Moon. This post will look at the Accords and discuss the meaning of the proposal itself as well as placing it within a broader context.
The publicly available document consists of 10 largely vague principles derived from the Outer Space Treaty and the other ‘core UN space treaties’ (though, for obvious reasons, not the Moon Agreement.) While these are ‘vague,’ they are important reaffirmations of key principles, and their generality is to be expected; this is an invitation for other countries to join the US, a basis for negotiation. To be more prescriptive at this stage would undermine that and invite further complaints of US ‘unilateralism.’
It is encouraging to see a reaffirmation for existing principles of space governance in this proposal. Not to belabour a point I made about the Executive Order, but if the Trump administration is willing to so emphatically endorse the Outer Space Treaty then that is an encouraging sign for the future of the US’ commitment to it and the regime emanating from it. Further, the Artemis Accords provide an opportunity for OST State Parties (or a least a subset of them) to work to develop and elaborate what is meant by certain aspects of the regime. One such example is ‘emergency assistance,’ hopefully, as indicated by this document, there will be an effort to elaborate on the principles outlined in Article V OST and the Rescue Agreement. Similarly, work needs to be done on the registration of space objects, as called for in these principles. Further, and probably the biggest ‘new’ proposal, is the call for protection of space heritage. NASA previously released some guidelines on this in the wake of one of the now-defunct Google Lunar X-Prize goals, and others have called for action to protect space heritage but this is an important further development. Similarly, it is good to see a recognition of the space debris and spacecraft disposal issue when discussing the Moon. We should learn from Earth orbit and be proactive with regards to the Moon, lunar orbit and cislunar space.
Overall, its good proposal, pushes the boundaries where they need to be pushed but generally reaffirms and upholds the key principles of the space governance regime.
That said, the Artemis Accords don’t (or won’t) exist in a vacuum. President Trump hasn’t exactly laid the groundwork for a multilateral agreement such as this, particularly given that his actions on trade and Iran have antagonised some of the key countries that this effort must be targeting. Further, there may be complications with ESA given that several member states are parties to the Moon Agreement (Austria, Belgium, the Netherlands), France is a signatory (and therefore bound to respect the object and purpose) and Germany has indicated that the Moon Agreement is something COPUOS should consider in reference to space resources (although generally they’ve called for a multilateral framework so they might be open to the Accords, although its restricted application to ‘like-minded’ countries might be an issue…) Further, the US has a Presidential election as well as election for the US Congress scheduled for November which could change things dramatically. Additionally, Covid and the expected recession may dampen enthusiasm for lunar exploration regardless of who controls the White House (especially outside of the United States).
However, that doesn’t mean that this proposal isn’t relevant. International law, beyond formal treaties such as the Outer Space Treaty, is developed by State Practice (i.e. countries actually doing something) and by a process of ‘claim and response.’ By developing these Accords the US and its partner countries will be introducing or developing norms which will compete in a ‘marketplace of rules’ for lunar governance. These rules will be accepted (either explicitly or implicitly) by the international community or rejected, but this is a necessary part of developing the space governance regime. The Outer Space Treaty is a framework treaty of principles that are meant to be developed and built upon as and when necessary. This effort does that. Other states can join it or oppose it, but they cannot ignore it.
While there are reasons to be sceptical, or concerned – safety zones have the potential to be a mechanism for de facto appropriation of territory; limitation to ‘like-minded countries’ could lead to fragmentation of the space governance regime – this proposal is a good thing, generally. Rather than simply continue to talk about the need to develop new rules for the Moon and the new space age the United States is taking action. Further, it is reassuring to see that it is firmly grounded in the Outer Space Treaty. We will have to see what the international reaction is, particularly in Western Europe and Japan, to gauge the actual impact of this proposal.
https://www.nasa.gov/specials/artemis-accords/index.html https://www.patreon.com/posts/episode-3-trumps-35804655; https://www.spacefaringcivilization.space/post/president-trump-s-space-resources-executive-order
https://820098ff-38b2-42e5-a0ab-bdb339e0dc88.filesusr.com/ugd/5de726_d99c206f4a91409f9de486b539469ee1.pdf Thomas Cheney, Sovereignty, Jurisdiction, and Property in Outer Space: Space Resources, the Outer Space Treaty, and National Legislation PhD Thesis, defended March 2020, Northumbria University, 288-297 Laurence R. Helfer and Ingrid B. Wuerth, ‘Customary International Law: An Instrument Choice Perspective’ (2016) 37 Mich. J. Int'l L. 563, 575 David J. Bederman Custom as a Source of Law (Cambridge University Press 2010), 150-151