NASA’s Artemis Accords: the path to a united space law or a divided one?
by Guoyu Wang
|The Artemis Accords will have a certain impact not just on the nature of space activities and the relations between spacefaring countries, but also on the discussion of relevant international rules.|
Thus, it remains to observe whether the Artemis Accords leave “opportunities” for the military to take part in or to support the Artemis program in terms of rules. Although NASA emphasizes “in according to the principle of the Outer Space Treaty,” it indeed modifies the original expression of the Outer Space Treaty greatly at the same time. Whether it is just a legal omission or an intended change is still to be clarified.
According to the NASA document, “Artemis Accords partner nations will be required to uphold this principle by publicly describing their own policies and plans in a transparent manner.” With regard to the requirement of transparency, there are broad consensuses and plentiful practices in the international community, thus, nothing is special in this part except that it particularly mentions that transparency is a key principle for “responsible civil space exploration.” It could be interpreted in different ways. First, the Artemis program is purely a civil one. Even so, as analyzed of “Peaceful Purposes” part, it’s still not clear about whether the military could be involved in, for example, use of results of scientific research for military interests. Second, does it indicate transparency is only a key principle for “responsible civil space exploration” but not for a military one? Third, would it be possible to reject a state on account that its space policies and plans are not transparent enough? Or would it be used as a new “transparency threshold” to participate in the Artemis Program?
“The Artemis Accords call for partner nations to utilize open international standards, develop new standards when necessary, and strive to support interoperability to the greatest extent practical,” NASA states. The Accords do not mention the details of the technical and engineering standards that will be used in the Artemis program and other space resources activities. Nevertheless, the determination of international standards would be significantly affected by the leading state of the program, and also plays a decisive role when considering whether it is practical to allow a state to participate in it and the potential role of the participating state in the cooperation.
The Artemis Accords reaffirm NASA’s and partner nations’ commitments to the 1968 Rescue Agreement. Additionally, NASA and partner nations commit to taking all reasonable steps possible to render assistance to astronauts in distress as required by the Accords. It’s not clear about the relation between this “additional” sentence and the relative rules in space treaties. First, Article V of the Outer Space Treaty stipulates that “in carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties,” thus the obligations of rescue literally exist only among astronauts on celestial bodies. But the Accord does not specifically mention the Outer Space Treaty and it seemingly applies not only between astronauts. Second, Article II of the Rescue Agreement stipulates that in particular circumstances namely, “owing to accident, distress, emergency or unintended landing,” a state shall “immediately take all possible steps to rescue… the personnel of a spacecraft” landing in its territory, and shall “render them all necessary assistance.” If this situation is also covered by the “additional” sentence, it seemly lowers the requirement of the obligation by taking “all reasonable steps” instead of “all possible steps”. Besides, the scope to be rescued and rendered assistance is changed smaller from “personnel of a spacecraft” to “astronaut.”
Therefore, the “additional” sentence that might be trying to enlarge the scope of the application of the Rescue Agreement to demonstrate more humanitarian views instead, as a matter of fact, narrows down the scope and lowers the standard of humanitarianism in the Rescue Agreement and creates a new obligation among states which is beyond the Outer Space Treaty.
|Article IX does not expressly stipulate the obligation of avoiding harmful interference, but rather sets up the obligation of international consultation when a potential risk of harmful interference is recognized by the conducting state.|
Besides, the Accord associates “providing emergency assistance to those in need” only with “any responsible civil space program.” I’m afraid it would be very controversial and risky by virtue of humanitarianism to determine whether emergency assistance should be provided is determined by the nature of the space program or by whether it is a responsible one or not.
The Accords demonstrates that registration of space objects plays a critical role in improving the level of transparency, along with coordination to avoid harmful interference. The Accords urge any partner which isn’t already a member of the Registration Convention to join as soon as possible. However, the Accords do not draw up any provisions on registration of celestial stations, equipment, installations, or other facilities. Whether all these “objects” should be defined as space objects in any circumstances remains controversial, and whether these objects shall be registered and what would be the relation between registration of and ownership over these objects in respect of the determination of jurisdiction over them is still a question to be discussed.
The Accords require the partners to follow NASA’s example to share of scientific data in a timely, full, and open way. Although the “sharing of scientific data” is not expressly stipulated in international law, including space law, it may be defined as international customary law in the case of being developed into a general practice. This initiative will gain much support from the international community, particularly from developing countries, as long as such data could be provided on a non-discriminatory basis to the greatest extent feasible.
The Accords call for partner nations to commit to the protection of sites and artifacts with historic value. Since 2015, there have been views among American experts and organizations who believe an international agreement should be drafted to protect the sites and artifacts associated with the space activities of the United States, so as to prevent them from damage that might be caused by lunar exploration activities of private entities or other countries. However, further discussion is still needed about how to guarantee that this principle would not infringe upon the freedom of other countries to gain access to and use celestial bodies. Without seeking such a balance, this principle would be more conducive to early nations involved in lunar exploration than later ones.
The Artemis Accords reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty. This principle can be regarded as a “voting certificate” for all states willing to join in such programs. It means that the common recognition of the legality of space resources exploitation and recovery is a sort of legal precondition to participate the program. In line with the Executive Order signed by President Donald Trump in April, this principle is also committed to promote the international community to reach consensus on the legality of exploitation and recovery of space resources.
This might be the most contentious principle of the Accords. First, the Accords hold that avoiding harmful interference is an important principle of the Outer Space Treaty. However, that is not the case. Article IX of the Outer Space Treaty stipulates that “if a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultation before proceeding with any such activity or experiment.” Clearly, Article IX does not expressly stipulate the obligation of avoiding harmful interference, but rather sets up the obligation of international consultation when a potential risk of harmful interference is recognized by the conducting state.
Second, there are still some particular concerns about how to balance the pertinent rights and interests involved in “Safety Zone.” In order to avoiding harmful interference, the Accords indirectly put forward the initiative of all parties to build safety zone, and stipulates relevant requirements of notification and coordination between partner nations. The reason why the concept of a “Safety Zone” is a sensitive issue is that such area might become a de facto “spheres of influence” of a state or be subject to national appropriation.
This is not the first time the concept of a “Safety Zone” has been discussed. As early as 2016, in the discussions of The Hague Space Resources Governance Working Group, the concept was put forward by technical experts and representatives of private entities. In general, the text agreed by The Hague Working Group pays more attention to balance the rights and interests between the state that establishes the safety zone and the successor states, and puts more considerations on the relationship between the text and the principle of non-appropriation as well as the obligation of international consultation in the Outer Space Treaty, compared with the Accords. However, the expression of the Accords seems merely to highlight the interests of the party which establishes the safety zone.
In the Building Block 11.3 of the Building Blocks for the Development of an International Framework on Space Resource Activities, which is drafted and agreed by the Hague Working Group in 2019, it stipulates,“Taking into account the principle of non-appropriation under Article II OST, the international framework should permit States and international organizations responsible for space resource activities to establish a safety zone, or other area-based safety measure, around an area identified for a space resource activity as necessary to assure safety and to avoid any harmful interference with that space resource activity. Such safety measure shall not impede the free access, in accordance with international law, to any area of outer space by personnel, vehicles and equipment of another operator. In accordance with the area-based safety measure, a State or international organization may restrict access for a limited period of time, provided that timely public notice has been given setting out the reasons for such restriction.”
|The Accords positively interpret existing space law in a way through which space resources activities can be allowed and promoted.|
In addition, Building Block 11.4 states, “The international framework should provide that appropriate international consultations are undertaken in case of possible overlap of safety zones or conflicts involving the freedom of access recognized by international law.” The expression regarding to non-appropriation and consultation was proposed by the author, as a member of The Hague Working Group, to seek a due balance between different interests and to make this building block as a whole more international and easier to be accepted by more space actors.
This should be the least controversial principle. The Accords emphasize that NASA and partner nations will agree to act in a manner that is consistent with the principles reflected in the Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space. Moreover, NASA and partner nations will agree to plan for the mitigation of orbital debris, including the safe, timely, and efficient passivation and disposal of spacecraft at the end of their missions.
It should be noted that the principle only emphasizes the importance of protecting the environment in outer space, rather than adopt the view that “it is an international obligation to protect the environment in outer space,” which is advocated by some scholars. It might indicate that the Accords do not expect excessive requirements to be set on the issue of space debris. And it can avoid levying unreasonable costs to partner states’ space resources activities, including those of private entities, so as to better encourage social capital to invest in the field of space resources exploitation and utilization.
First, in terms of overall objective, the Accords intend to create a favorable international environment for space resources exploitation and utilization led by the United States, which includes the environment of international rules, cooperation, and public opinion. It subsequently seeks to build a community of interests led by the United States in the field of lunar and deep space exploration, as well as to establish its dominant position in space resources exploitation and recovery, and, finally, to consolidate its leading position in space. Moreover, the Accords might also have the intention to reduce the negative influences on international politics of the US caused by the unilateralism and withdrawal doctrine pushed by the Trump Administration. It holds high the flag of cooperation through which to demonstrate the important and positive role of space industry in serving the overall US diplomacy.
Second, from the perspectives of strategies and approaches, the Accords are in line with the Space Resource Exploration and Utilization Act of 2015 and the Presidential Decree No. 13914 in April 2020. It follows the basic space strategy, namely, “America First, America Guiding, and America Leading,” and actively supporting American commercial space industry as well. The Accords still follow the American approach of space global governance, which is conclude as “shaping international space rules and politics on basis of national law and policies, characterized as a public-private partnership.”
Third, as to its specific contents, the Accords positively interpret existing space law in a way through which space resources activities can be allowed and promoted. Simultaneously, it creates, adopts, or emphasizes specific rules if necessary to its needs. It establishes rules about heritage protection, safety zones, and emergency assistance to safeguard the important interests of the US and its partner nations in space resources activities. Furthermore, it emphasizes transparency, registration of space objects, mitigation of orbital debris, protecting the outer space environment, and interoperability, so as to maintain the greatest extent of consensus with European allies on relevant issues and attract other like-minded states. It advocates sharing of scientific data, to abide by the Outer Space Treaty, to work for the benefit of all humankind, and holding high the flag of international cooperation, all in order to formulate an image of a responsible leader, in such ways to seek as much support as it can and to obtain a friendly environment of international public opinion.
Cooperation is always accompanied by competition. The Accords highlight cooperation, as well as actively promotes commercial utilization of space resources. This is bound to initiate a new round of competition about exploitation and utilization of the resources on the Moon and other celestial bodies among states and private entities. Exploitation of the resources on the Moon and other celestial bodies could become the spotlight of a new round of the space race and a new “battlefield” among space powers. For a long time, space competitions and contests have been mainly supported by technology, engineering, and science, and are mainly in the fields as launch, space applications, space science, human spaceflight, and deep space exploration.
|The United States may even imply or require that, once a state once becomes its partner nation in the Artemis program, it is not allowed to carry out relevant cooperation with China.|
In the last ten years, those trends appear have extended both in depth and breadth. First, the competition in space diplomacy, space rules, and space economy have become increasingly fierce. Second, three new directions or fields of space development, including on-orbit servicing (OOS), planetary defense, and exploitation and recovery of space resources, have become increasing clear. Exploitation of space resources covers the basic needs of the other two in terms of technology and engineering. This activity can both be used to stimulate, develop, and verify various new technologies, and has a potential commercial market. In addition, it is of great political and strategic significance. The capability of the exploitation and utilization of space resources determines the depth of space strategic capability, and plays an important role in promoting a nation’s prestige. Although it’s unknown exactly how much valuable resources could be discovered and recovered, contending for limited resources on a handful of celestial bodies will surely lead to a new round of a space race.
In recent decades, space law debates have been concentrated on the issues of space debris and arms control. The spotlight of future is in three areas: the rules of military utilization in space, space traffic management systems, and the rules of exploitation and utilization of space resources. Given the perceived sensitivity both of military utilization and space traffic management, in the short term the specific discussion will focus on the construction of cooperation and coordination mechanisms, as well as non-legally binding documents. However, great political differences exist in the matter of drawing up legally binding documents. The United States has been strongly opposed to proposals by China and Russia regarding formulating treaties on the non-weaponization of outer space. By contrast, in the discussion of legal issues on space resources activities, the legitimacy or reality is more prominent, urgent, and explicit. The interpretation of existing rules and formulation of new rules on space resources will become the focus of the legal game among space powers.
Specifically, the issues mentioned in the Accords, such as peaceful purposes, safety zones, rights of space resources, and emergency assistance, will cause disputes about the interpretation of existing international space law, especially the 1967 Outer Space Treaty. However, the issues of transparency, interoperability, registration of space objects, and protecting heritage will bring about debates on the formulation of new international space rules.
The Artemis program may imitate the modality of the International Space Station to set political, legal, or technical thresholds, but at the same time it will keep on excluding and isolating China according to the relevant domestic laws of the US. On account of the Accords, it could be inferred that it is likely to adopt the approach of ISS cooperation. It means that any state or space actor with a willingness to join in must obtain prior consent of the United States. According to the “Wolf Amendment,” the US can refuse to cooperate with China under the bilateral or multilateral framework on the ground that the Artemis program is led by NASA. The United States may even imply or require that, once a state once becomes its partner nation in the Artemis program, it is not allowed to carry out relevant cooperation with China, especially in the fields of lunar exploration, deep space exploration, and space resources activities. It would be the last picture we’d like to see.
All in all, it’s no doubt that the Accords seek a multilateral recognition of international rules and principles beyond the framework of UN, through reaching some bilateral agreements. It might make it out of balance regarding to relevant legal debates within and beyond UN. Although it is conducive to bring more academic or official discussion on legal issues of space resources activities, it’s still a high risk to make countries more divided in legal opinions rather seek a united space law, in that it is a precondition to join an international program but only through representing the viewpoints of one country rather than being as a result of international negotiations.
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