While development of the lunar Gateway (above) will be done through an extension of the intergovernmental agreement for the International Space Station, NASA envisions a new approach for further international cooperation in the Artemis program. (credit: NASA)
The cooperation among the nations involved in the International Space Station is governed by what’s known as the Intergovernmental Agreement (IGA), a legal framework that handles the rights and responsibilities of the United States, Russia, Japan, Canada, and various European nations involved in the station. That framework will be extended to cover the lunar Gateway, the facility NASA is developing in lunar orbit as part of the Artemis program with future contributions by Canada, Europe, Japan, and perhaps Russia.
However, while NASA has made international cooperation a priority for the overall Artemis program, citing language in Space Policy Directive 1 in 2017 that called for working with commercial and international partners, the agency found that further extensions of the IGA wouldn’t be feasible. Instead, it is planning a series of bilateral agreements with nations, from ISS partners to emerging space powers, under the aegis of what it calls the “Artemis Accords.”
Since NASA announced the accords two months ago, the concept has been widely debated and discussed. Some, for example, see the Artemis Accords as a mechanism to address issues regarding safe operations on the Moon (see “Imagining safety zones: Implications and open questions”, The Space Review, June 8, 2020). Others, though, see them as revisiting the mistakes of past eras of exploration and dismissing alternative models (see “The Artemis Accords: repeating the mistakes of the Age of Exploration”, The Space Review, June 29, 2020).
A “forcing function” for good space behavior
But what, exactly, are the Artemis Accords?
So far, NASA has only outlined at a high level what the accords will include, emphasizing the principles that will be incorporated into them. “We need a framework for how we’re all going to cooperate on the surface of the Moon,” NASA administrator Jim Bridenstine said at a meeting in May of the NASA Advisory Council’s Regulatory and Policy Committee, where he formally announced the accords.
“International space agencies that join NASA in the Artemis program will do so by executing bilateral Artemis Accords agreements, which will describe a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy,” the agency says on a webpage about the accords.
That page lists the principles that will be included in such agreements. Most are not controversial, and some simply restate language in the Outer Space Treaty and associated international agreements. That includes space for peaceful purposes, transparency in operations, providing emergency assistance, and registration of space objects.
Others build on that theme. The accords call for interoperability of space systems by using international standards where available, as well as the open release of data from science missions. Countries would also agree to the “protection of sites and artifacts with historic value” and agree to follow orbital debris mitigation guidelines.
A couple aspects, though, veer into more controversial territory. The accords affirm the rights to extract and use space resources, implementing an executive order in April that recognized such rights granted under US law and called for international adoption (see “Putting the White House executive order on space resources in an international context”, The Space Review, April 27, 2020) and creation of “safety zones” as a means to deconflict activities. Both raised questions among some space law observers about conflicts with Article II of the Outer Space Treaty, which prohibits “national appropriation” of celestial bodies.
NASA officials argue that the Artemis Accords are required since simply extending the space station’s IGA to other aspects of the program wasn’t feasible. “The IGA inherently wouldn’t fit the nature of the activities on the surface of the moon on in cislunar space, with the exception of Gateway,” Mike Gold, acting associate administrator for international and interagency relations, said when accords were announced in May. In addition, the Artemis Accords make it easier to add new countries to the program.
Another factor, though, is that the accords offer a means to encourage what the US sees a good behavior in space: to be a part of America’s return to the Moon, countries will also need to address on various policy issues that align with American views. “The administrator wants to use this singular opportunity that we have with the Artemis program to take our principles and move them forward, with the US leading both in technology and policy,” Gold said.
Bridenstine had made that point on a number of occasions, as recently as last week. “What are the forcing functions we have to compel people to do the right things?” he said in a “Moon Dialogs” webinar last Thursday.
“One of the forcing functions we have is that we are going to the Moon under the Artemis program,” which has attracted interest from a number of traditional and non-traditional partners. “If you’re with us, here are the norms of behavior that we expect, that we live by.”
Interpreting the accords
The Artemis Accords will take the form of a series of bilateral agreements between the United States and participating nations. NASA has not announced any such agreements yet, nor has it published a draft version of such an agreement with more details about how those principles will be applied.
That’s allowed many in the space community to offer their own interpretations of the accords, including wishes for, or criticism of, what it may or may not include beyond those broad principles.
The Moon Dialogs event was just one of three events last week that included some discussion of the Artemis Accords and their applicability to various aspects of space exploration and development. Bridenstine used that Moon Dialogs event to announce changes in NASA’s planetary protection policies, including one that moves most of the Moon outside of the polar regions to Category 1, the lowest level, which places no requirements on missions. Those going to the poles will remain in Category 2, which requires an inventory of any biological payloads on the spacecraft but sets no cleanliness requirements.
Gold, participating in a panel discussion in that webinar, said that planetary protection was a part of the Artemis Accords as an element of avoiding harmful interference. “Harmful contamination is certainly an aspect of harmful interference, so countries that join us in the accords, that join us on this awe-inspiring journey that is the Artemis program, would have to respect preventing harmful contamination,” he said.
The Committee for Space Research, or COSPAR, has formulated planetary protection guidelines that countries then voluntarily adopt. Gold said the long-term goal is for the US changes to be adopted more broadly, including by COSPAR.
That approach will likely continue in the long term, with other panelists rejecting replacing it with something like a new international organization. “In pragmatic terms, this is not something that will happen, but I also do not think it is necessary,” said Tanja Masson-Zwaan, deputy director of the International Institute of Air and Space Law at Leiden University.
A day before the Moon Dialogs event, the new Beyond Earth Institute held a webinar on “Artemis Accords: A Model for Space Settlement International Protocols?” The institute, which published a white paper on policies to accelerate the creation of “communities in space,” recommended, among other changes, development of voluntary norms of behavior in space and work with like-minded allies that could lead to agreements that support establishment of space settlements.
“NASA’s Artemis Accords may be the first step on the path to such an agreement,” said Tom Marotta, a co-founder of the Beyond Earth Institute.
After Gold provided an overview of the Artemis Accords, panelists weighed in with their endorsements of the approach, but also some concerns. “I think the accords are a fabulous start for NASA and its partners,” said Laura Montgomery, a lawyer who formerly worked for the FAA’s commercial space transportation office and is now a specialist in regulatory space law at Ground Based Space Matters. “Well, the devil is in the details.”
She raised a couple issues with how the accords might apply to commercial space activities in particular. One is the requirement for open release of science data, which works for government space missions but could be a concern for companies that are prospecting for space resources. “I’m sure that, if I were a miner, I wouldn’t want to share the location of the platinum group minerals I just found,” she said.
Another issue is interoperability. “It’s not something we would want to mandate for the commercial sector, and certainly not in the early stages,” she said. Doing so too early, she warned, could result in locking in companies and organizations to standards that turn out to be less than optimal.
Neither issue should be a showstopper for the accords, Gold said. “I think we have to be very careful as we translate the accords that many of these aspects, as Laura pointed out, are particular for government-to-government and should not be translated to the private sector,” he said.
But space settlement advocates are a particularly optimistic group of people. Asked later in the webinar when the first settlement in space will be established, Pete Worden, the former director of NASA’s Ames Research Center, predicted, “I think it’s going to happen this decade… I think it will be fairly straightforward to get a settlement set up.”
International legal experts are not nearly as optimistic, about space settlements or the Artemis Accords. During a webinar Friday, some weighed in with their concerns.
“It is an American program, we must admit that and recognize that,” said Ram Jahku, associate professor of law at McGill University, of the Artemis program. “That means it will essentially be carried out in compliance with, and subject to, American national laws and policies and politics.”
Countries interested participation in Artemis could face some potential legal conflicts, he argued. One example is the provision acknowledging rights to extracted space resources. “It would need to carefully examine its position before signing an Artemis Accords” if that country, for example, is a signatory to the Moon Agreement, which considers space resources the common heritage of humankind.
“For prospective partners that plan to sign the accords with NASA, there are several serious issues they need to consider,” he concluded. The accords could provide “excellent opportunities” for countries that can navigate those issues, he said, but they need to examine the costs and benefits of doing so.
André Farand, the former head of ESA’s legal services division, contrasted the Artemis Accords with the IGA, which took years to negotiate. “There is clearly a sense of urgency on NASA’s side,” he said. “It is difficult to reconciled the timing of the conclusion of the Artemis Accords with the inherent lag time of treaty-making practice, as we have seen when we negotiated the ISS agreement in the ’80s and ’90s.”
He raised the question of whether the Artemis Accords were really the subject of negotiation. “The treaty route for finalizing the accords is not practical” because of that urgency, he said. “The difficulty will be to have the detailed wording accepted multilaterally.”
Gold and Gabriel Swiney, a State Department lawyer involved in crafting the Artemis Accords, defended the accords in that webinar, arguing that the accords are intended to be a “baby step” forward from the Outer Space Treaty and did not rule out additional agreements that are more formal and multilateral. There would be opportunities for multilateral discussion on elements of the accords themselves, like defining a “heritage site” that should be protected.
Swiney in particular addressed some of the criticism that the Artemis Accords received in the last two months. “There’s been a lot of, let’s say, overwrought reactions to the Artemis Accords in the press and on space Twitter,” he said. “The Artemis Accords isn’t some kind of sneaky attempt to expand American control to the Moon or change international space law.”
One issue in particular he addressed is deconfliction and the creation of safety zones. He argued it stemmed from Article IX of the Outer Space Treaty, which requires consultations if activities in outer space might results in harmful interference.
“It’s pretty straightforward. Telling other people what you’re doing in outer space. Telling them where you’re doing it geographically, either on the surface of the Moon or in a particular orbit, something like that. Be public about safety or interference concerns that you might cause to others or they might cause to you,” he said. “And then, if there’s a problem or potential confliction in terms of activities, you talk, coordinate, and work it out.”
A “safety zone,” he said, is just an implementation of that approach. “It’s not some kind of territorial claim, it’s not saying it’s a keep-out zone,” he said. “It’s really a coordination mechanism.”
The Artemis Accords in general, one could argue, are a coordination mechanism about international cooperation in space: agree to these sets of principles, and we can implement your country’s capabilities into the broader Artemis program. That could work—so long as countries really want to cooperate with the US on Artemis.