By Jessica West
Published in The Ploughshares Monitor Volume 41 Issue 2 Summer 2020
Even during a global pandemic, humans continue their journey back to the Moon. On May 30, the SpaceX Dragon Crew spacecraft, propelled by a Falcon 9 rocket, carried two NASA astronauts to the International Space Station. Years behind schedule, the first crewed launch of a private space vehicle was still a triumph.
The event marked the first U.S. human space launch since the Space Shuttle was retired in 2011. It also served as a rehearsal for the SpaceX Starship heavy-lift rocket now in development. SpaceX is one of three companies contracted by NASA to create a human lander for the NASA-led international Artemis program that aims to return humans to the Moon and establish a permanent base there before venturing to Mars. The “first woman and the next man” are scheduled to touch down on the lunar surface by 2024.
NASA claims that success in this endeavour “will change the world.” It will certainly change the relationship of humans with the Moon.
The Artemis Accords
In mid-May, NASA published The Artemis Accords: Principles for a Safe, Peaceful, and Prosperous Future, a brief document that sets out the foundational ideas for the accords, a series of bilateral agreements between NASA and its international Artemis partners. These agreements are expected to help the Artemis program achieve “a sustainable and robust presence on the Moon” while preparing for the Mars mission. The hope is that the accords will set the normative interpretation of international law as it applies to all activities on the Moon.
It is critical to relate the accords to the April 6 U.S. Executive Order “Encouraging International Support for the Recovery and Use of Space Resources,” which refers to space mining. The immediate focus is on accessing water and mineral resources on the Moon to support human life and robotic activities there. In the long term, the private sector is interested in exploiting these resources in a future extraterrestrial economy.
International law on space mining is unclear. The Outer Space Treaty includes a non-appropriation principle applied stringently to the Moon, but not specifically to its resources. Only recently has this topic come up for discussion at the UN Committee on the Peaceful Uses of Outer Space.
If humans are to exist permanently on the lunar surface and travel beyond, they will need to use extraterrestrial resources. The governments of the United States, Luxembourg, and the United Arab Emirates have adopted legislation granting private commercial companies the right to own and acquire such resources. Both the Executive Order and the Artemis Accords seek to establish this principle as the international norm.
The Executive Order not only asserts that exploiting space-based natural resources is legal, but seeks to free this activity from international regulation. It denounces the Moon Agreement, an unpopular effort to regulate activities on the Moon based on the principle of “common heritage.” And it states that the United States does not view outer space as a global commons. The effect is to open the way for vastly expanded public- and private-sector activity on the Moon, with limited governance.
The Artemis Accords does set out broad principles to guide such activity, which must be followed by NASA’s international partners, including Canada, Japan, Australia, and the European community. For the most part, these principles are based on the Outer Space Treaty and promote peaceful activities, the registration of space objects with the United Nations, no harmful interference, and the provision of emergency assistance. They encourage transparent national policies and plans, and promote cooperation through common technical standards for interoperability and the release of scientific data.
While a good beginning, the Artemis principles leave unanswered many practical and political questions that U.S. partners need to ask. Five key questions follow.
1. What kind of space is outer space?
The idea of outer space as a global commons, free for all to access and use, has long informed global and U.S. space activities. To now argue the contrary challenges the prevailing understanding of the international community.
If outer space is not a global commons, then what is it? The answer may be an open, ungoverned frontier, not just for scientists and explorers, but for entrepreneurs, industrialists, and geopolitical competitors. Although claiming ownership of the Moon is forbidden by treaty, the notion of outer space as a frontier encourages the idea that an actor can “stake a claim” to a location and its resources. The implications are troubling, given the concentration of resources and suitable habitats in the deep craters of the lunar south pole.
2. What does “deconfliction”mean?
One of the more original ideas found in the Artemis Accords is “deconfliction of activities” on the Moon. The accords call on partner organizations to publicly disclose the location of their activities so that “Safety Zones” can be established around them through notification and coordination of activities, and the application of principles of non-interference and due regard.
Safety zones exist elsewhere in international law. For example, they can be established around artificial islands, installations, and structures that may be built within a state’s exclusive economic zone extending from coastal territory. While the idea has merit in a hazardous and delicate operating environment such as the Moon, many practical questions remain.
There are also political concerns. In the absence of prior consultation and international coordination, or a mechanism for conflict resolution, emphasis on deconfliction seems intended to bestow absolute rights on the first arrival.
3. What counts as heritage?
Artemis partners must commit to the protection of heritage, defined as “sites and artifacts with historic value.” This is the only mechanism under international law to preserve the history of human activity on the Moon. But, as written, only the remnants of human activity are to be protected.
The Moon itself is not considered part of the “common heritage of humankind” with cultural and historic value worthy of protection. More challenging: the same craters with resource value are believed to hold much of this history. While the accords stipulate measures to mitigate orbital debris, they are silent on treatment or preservation of the lunar surface and its natural artifacts.
4. Who benefits?
The history of human space activities has been marked by the sharing of scientific data, which can ultimately benefit all humans. This approach is preserved in the Artemis Accords, which commit partners to “releasing their scientific data publicly to ensure that the entire world can benefit from the Artemis journey of exploration and discovery.”
The accords resist the requirement for additional benefit-sharing stipulated in the Moon Agreement. Yet the need to extend the benefits of space exploration more directly and more widely has been recognized in international fora, including the 50th-anniversary meeting of the first United Nations Conference on the Exploration and Peaceful Uses of Outer Space in 2018. There are many ways to interpret the meaning of both benefits and sharing. But there is nothing in the Artemis Accords that commits to measures that might mitigate the technological and resource inequality that a frontier mentality threatens to widen.
5. Who has a say?
In 2019, U.S. Vice President Pence declared that “the rules and values of space are written by those who have the courage to get there first and the commitment to stay.” Those rules and values are in the Artemis Accords—rules to be applied by U.S. partners via bilateral agreements. But the effect of the agreements goes beyond the signatories to set the normative interpretation of international law as it applies to all activities on the Moon.
This process leaves out not only today’s “Earth locked” countries, but other global space powers with lunar ambitions, namely China, Russia, and India.
The Artemis Accords are unilateralism in disguise. It is not clear that even the partners signing on have a say in their content.
This process drips with hubris. The accords are based on the assumption that the United States and its partners will indeed arrive on the Moon first. This in a time of unprecedented uncertainty and political and economic flux. But even if the Artemis partners do win this space race, it may be that the rest of the world’s states will not accept the rules that the accords lay down.
It is in Canada’s interests to participate in the Artemis program. And the program, in turn, stands to benefit from Canadian expertise in space robotics and medicine, and from Canadian financial contributions. But before putting ink to paper, Canada—and the other partners—must ask some important questions and be prepared to fight to preserve what are now commonly accepted international principles and interests, including the preservation of the Moon and the rest of space as a global commons. Silence today is acquiescence tomorrow.