Artemis Accords: Unilateralization In Space
Moon is in the news, again. The first human landing on the surface of the Moon was made possible on July 20, 1969, with the landing of Apollo 11. The last human landing on the Moon was during December 1972. The US now is proposing the next human landing on the Moon around 2024. Moon landing during the 1970s was more about the technological one-upmanship amongst the then superpowers, namely the US and USSR, but now in the 21st century, there is a visible change in the approach. Fairly recently, eight states namely, the United States, Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates (UAE) and the United Kingdom (UK) have come together to sign an accord called the Artemis Accord. The Accord is about exploring the Moon, Mars, Comets, and Asteroids, together. The in-depth paper intends to deliberate on the political and legal dimensions of the Artemis programme. The program is named Artemis, the Greek goddess of the Moon and twin sister to Apollo. However, besides its cosmic connection, it stands for Acceleration, Reconnection, Turbulence, and Electrodynamics of the Moon’s Interaction with the Sun (ARTEMIS).
Artemis Programme
The National Aeronautics and Space Administration (NASA) is an independent agency of the US which is responsible for their space programme. Recently, NASA has announced its bold new vision to lead a human return to the Moon and beyond with commercial and international partners.[1] The programme’s first major mission is going to be a landing of the first woman on the Moon by 2024. With this programme, NASA is building a coalition of partnerships with other countries, industry and academia to further their space agenda of sending humans to Moon (distance, 384,400 km) and Mars (distance, 56 million km). NASA understands that they would require several years in orbit and on the surface of the Moon to build operational confidence for ensuring long-term human presence on Moon and Mars.
History of International Collaboration in Space
Any agreement for collaboration to conduct activities in the outer space should always be welcomed. If the nation-states are keen to realise the dream of colonisation of Moon and Mars, then only the joint projects like the Artemis could allow them to achieve success in a relatively shorter time-span. Over the last few decades, there has been increasing realisation that space just cannot remain as an exclusive domain, in the hands of few states and to garner befits for humanity, there is a need to undertake joint space exploration in some areas of mutual interest. Hence, during the post-Cold War period, some very important collaborative initiatives like International Space Station (ISS) have materialised. This unique experiment began in November 1998 and is continuing till date. The ISS is a multinational effort with participation of space agencies of the US, Russia, Canada, Japan and 11 member states of the European Space Agency (ESA). This collaboration has been the most politically complex space exploration program ever undertaken.
ISS has been unique in many ways, and it has made possible two decades of continuous human presence in space. Over the years many experimentations have been conducted on board of ISS in microgravity atmosphere. Notably, the medical field has been the primary beneficiary of such experimentation. This experiment has shown the growth trajectory of nation-states beyond their differences and something constructive. Remarkably, the states like the US and Russia have displayed significant maturity and have even insulated it from the “sanctions” regime. Importantly, the US-Russia space collaboration is not restricted to cooperation at a multilateral level. At the bilateral level, Russian engines are used for powering American rockets. The Russian RD-180 engines are part of NASA’s Atlas 3/Atlas 5 rocket launchers. So far these launch vehicles have carried more than 15 spy satellites for the US. Also, for the US missions to Mars and the launch of New Horizons to Pluto (2006) and Juno to Jupiter (2011) were made on the back of the RD-180.[2] It clearly indicates that the nation-states can grow beyond terrestrial confrontation when it comes to orbital cooperation.
Today, even private players have started undertaking missions to ISS. It is important to note that the global cooperation in space is not only restricted to ISS. The most long-term and effective space collaboration is the formation of the European Space Agency (ESA). This is an intergovernmental organisation, established in 1975 and has 22 member states dedicated to the exploration of space. Some of the other important multilateral/bilateral projects undertaken in space. include India’s collaboration with France, in space. India’s missions to Moon and Mars have carried sensors from various countries. Some other important collaboration could be China-Brazil and US-Japan partnerships. All this clearly demonstrates the strength of global cooperation towards advancing the global space agenda.
Artemis: Tenets of Collaboration
Is Artemis following the spirit of ISS and taking the idea of global space collaboration to the next level or does the programme have certain limitations and is not found following the notion of global space collaboration in a correct direction?
The Artemis Accord claims to establish a new vision to enhance the governance of the civil exploration and use of outer space. However, it is taking a position contrary to the global view on the management and the ownership of the resources in the outer space. For last few years NASA had already started undertaking various projects to further their Deep Space agenda. The Artemis programme is a rechristening of all such ongoing activities under one programme, essentially associated with the return of humans to the Moon.
This group of eight, who are the signatories to the Artemis accord is an interesting mix of countries. It has only two space-faring states, namely the US and Japan. There are a few European states, however, important players in the space domain like Germany and France are not there. China, which has been mostly flying solo in the outer space arena, is nowhere in the loop and has also not expressed any opinion about this project. Incidentally, China’s Chang'e-4 probe on the surface of the Moon has recently resumed the work for 23rd lunar day. In recent years China’s progress in space has been remarkable and could have been a diplomatic coup if the US would have managed to get China onboard by tweaking restrictions put on NASA. There were expectations that Russia would be a part of this collaboration. However, Russia is yet to join. The US is hopeful that Russia would eventually become a part of this project. At present, however, there are mixed reactions from Russia in regards to becoming a partner in the ‘Lunar Gateway’ project. Notably, states like India, Israel and South Korea are also absent.
Apart from the US, states like Luxembourg and UAE who are a part of the Artemis collaboration, have one unique characteristic in common. All, these three states have established a legal architecture at the national level, which permits their space industry to undertake the extraction of minerals from extra-terrestrial bodies. Also, Artemis accord indirectly enables them to ‘own’ the resources extracted from other planets or Asteroids. Hence, it is very critical to debate the legal aspects in correction with the provisions of the Armitage Accord.
The Legitimacy of Space Resources Exploitation
The Committee on the Peaceful Uses of Outer Space (COPUOS) was set up by the United Nations General Assembly (UNGA) in 1959 to govern the exploration and use of space for the benefit of all humanity for peace, security and development.[3] The COPUOS subsequently developed five treaties, including the treaty on the principles governing the activities of the states in the exploration and use of outer space, including Moon and other celestial bodies. In broad terms, any exploration of outer space should be done for the benefit and interest of all countries and other space should be province of all mankind.
However, the US is found following a path which is in diversions to global accepted position. On November 25 2015, the US government has formulated the US Commercial Space Launch Competitiveness Act (HR 2262) which facilitated the commercial exploration and commercial recovery of space resources by the US citizens. It allows the US citizens engaged in commercial recovery of an asteroid resource or a space resource under it, to use and sell the asteroid resource or space resource obtained. [4]
Now, signing of the Artemis Accords represents a significant political attempt to codify key principles of space law and apply them to the programme.[5] The Artemis accords is an arrangement amongst themselves and not any binding instrument of international law. This could lead to future development of a customary law by establishing practice in the area, which could have a significant influence on any subsequent governance framework for human settlements on Moon, Mars and beyond.
There is no prohibitive or permissive rule in customary international law about the legality of unilateral exploitation of space resources. However, the 2015 Commercial Space Launch Competitiveness Act by the US and similar approach taken by few other states and now the coming together of the eight states under the Artemis Accords demonstrates a tendency towards freedom to engage in unilateral exploitation of celestial bodies.
However, it is important to note that Article VI of OST does not openly and explicitly permit activities of private actors in outer space. But, the US appears to be intentionally overlooking various legal hurdle which does not match their vision.
Article II of the 1967 Outer Space Treaty (OST) is about the non-appropriation principle of outer space and provides the direction for all activities in the space beyond Earth’s atmosphere. The principle does not prohibit resource exploitation in outer space, but harps on the manner that limits others’ access to the same resource which could amount to appropriation. The consumption of a celestial body in its entirety, regardless of its size, would also amount to appropriation. There is a possibility that in future, a small asteroid could be taken over by some agency. Hence, there is a need for a narrower definition of the celestial body (under OST). The exploitation of space resources perhaps falls within the ambit of the freedom of use of outer space and hence could be permitted. However, the principle of common benefits and interests requires that the benefits resulting from the exploitation be shared in a manner that is non-detrimental to international peace and stability and beneficial to the promotion of equality among States.[6]
Concluding Thoughts
At present, states and private players do not possess the required level of technical expertise to get a rock sample back from the objects in space to Earth. The first encouraging result in that direction came in on October 20 2020. After orbiting the near-Earth asteroid Bennu for couple of years, NASA's OSIRIS-REx spacecraft successfully touched down and reached out its robotic arm to collect a sample from the asteroid's surface. Possibly, five seconds post-touchdown on the asteroid surface has resulted in picking up of 60 gm of rock/sand sample. This sample will be returned to Earth in 2023. All this indicates that the issues related to unilateral exploitation of space resource are not dying for immediate attention and probably hence there is a lack of major global debate on this subject.
It appears that the US and other interested players will seek to exploit this situation to their advantage. They are keen on controlling the global space discourse from technology, legal and policy perspective. The Lunar Gateway programme offers an opportunity for the US to make correct and timely moves. Artemis Accords demonstrates their vision towards allowing the respective private companies to extract and exploit planetary resources. This could assist with international space law legislation unilaterally, in future.
Likeminded states need to come together and push for a legal regime for the exploitation of planetary resources. There is a need for development of a multilateral agreement on the exploration, exploitation, and utilisation of space resources under the UN umbrella.
Artemis which stands for Acceleration, Reconnection, Turbulence, and Electrodynamics of the Moon’s Interaction with the Sun looks to be a technologically sound programme which would significantly boost the research and development in various areas of emerging technologies. This project is expected to take the space science further, however, at the same time leaves a big question about space mining and commercial exportation of mineral deposits on other planets.
NOTES
[1] “ARTEMIS: Human Returns to the Moon”, NASA, https://www.nasa.gov/specials/artemis/
[2] Matthew Bodner, Can SpaceX and Blue Origin best a decades-old Russian rocket engine design? Technology Review, June 26, 2019, https://www.technologyreview.com/2019/06/26/134490/spacex-blue-origin-russian-rd180-rocket-engine-design/
[3]“Committee on the Peaceful Uses of Outer Space”, UNOOSA, https://www.unoosa.org/oosa/en/ourwork/copuos/index.html
[4]“U.S. Commercial Space Launch Competitiveness Act, Public Law 114 (90), November 25, 2015, https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf
[5] “Artemis Accords: why many countries are refusing to sign Moon exploration agreement”, The Conversation, October 19, 2020, https://theconversation.com/artemis-accords-why-many-countries-are-refusing-to-sign-moon-exploration-agreement-148134.
[6] Jinyuan Su, “Legality of Unilateral Exploitation of Space Resources under International Law”. International and Comparative Law Quarterly, October 2017 , Vol. 66 (4), pp. 991-1008.