Behind the Scenes of the Artemis Accords: the Analysis of Political and Legal Aspects

One month ago, on October 13, 2020, as part of the 71st session of the International Astronautical Congress (IAS 2020: CyberSpace Edition), the first political bridges were built between states ambitions of which go deep into space. Eight states have signed the international Accords, outlining the principles of cooperation between signatories in the exploration and peaceful purposes use of the Moon, Mars, comets and asteroids. The Russian Federation and China have refrained from signing. However, few people think about what legal and political facts permeate both the Accords themselves and the accompanying circumstances of its signing.

Back-story and structure

The agreement is named after the US program of the same name for the development of the Moon and is designed primarily to formalize the principles of research and economic activities of states in outer space, where the main focus is the beginning of activities in the deep space. The agreement outlines 10 principles of space activities: peaceful purposes activities, transparency, interoperability (functional interaction), emergency assistance, spacecraft registration, publication of scientific data, preservation of space heritage, mining of space resources, conflict prevention and counteracting the formation of space debris.

In their structure, the Accords are bilateral, and in essence they are an accession agreement. According to the initiators of the Accords, in particular the almost former head of NASA Jim Bridenstine (resigned after the victory of Joe Biden in the US presidential election), NASA decided to implement the Artemis Accords in the form of a bilateral agreement (or, more precisely, a series of bilateral agreements ), as it allows to move towards its implementation faster, than if NASA sought to conclude a multilateral agreement under the auspices of the UN.

In fact, such an approach will allow the United States to decide for itself, before the implementation of the Artemis Program, cooperation with which states will be the most productive. In particular, on the basis of whether the principles, stipulated by the Accords, are consonant with the signatories. Brazil, which has already received an official invitation from the White House, is expected to join the Accords next.

Clause 2 of Section 13 of the Final Provisions states that the United States Government shall retain the original text of the signed Accords and transmit to the UN Secretary-General a copy which is not subject to registration in accordance with Article 102 of the UN Charter. This provision means that the Accords will not be registered in accordance with paragraph 1 of Article 102 of the UN Charter. Therefore, none of the parties of the Accords will be able to refer to it in any of the UN bodies. Thus, the USA does not entrust the UN with the functions of the depositary of the Accords. This fundamentally distinguishes the Artemis Accords from the four main international legal acts on which the space states of the world are guided in their activities. These are the Space Treaty, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Convention on International Liability for Damage Caused by Space Objects (1972), the Convention on the Registration of Objects Launched into Space (1975). The depository of all four documents is the UN. However, in the case of the Artemis Accords, the United States, as the depositary, will keep the original texts of the agreements, verify that all signatures, documents, and notices relating to the Accords are in order, and inform the states that have the right to become parties to the Accords in the future.

Political nature and logical sequence of planned steps

According to Jim Bridenstine, the Accords are intended to ensure the practical functionality of the provisions of the Treaty on the Principles of States Activities for the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967). This is also confirmed by the preamble of the Accords, which state that it is based on the desire to implement the provisions of the Outer Space Treaty and other relevant international documents. Thus, the Accords can establish political coherence between mutually beneficial practices of future exploration and use of outer space, with a focus on activities in support of the Artemis Program.

The Artemis Accords does not contain a reference to the Agreement on the Activities of States on the Moon and Other Celestial Bodies (1984). However, this fact should not come as a surprise, as the United States did not sign the latter. However, on April 6, 2020, Donald Trump signed an Order on support of commercial mining of resources on the moon and other celestial bodies. He stressed that the United States refuses to consider the resources of the Moon and other celestial bodies as the property of mankind (as actually declared by the Moon Treaty) and seeks to spread this approach to other states.

Notwithstanding the reference in the text of the Accords to the Outer Space Treaty, the structure and content of the Accords are a protocol of intent (or memorandum). This is evidenced in particular by the lack of essential terms of the contract: the distribution of responsibilities of the parties, the specific subject of the contract, the term of the contract, the order of transfer or distribution of results, financial obligations of the parties, intellectual property rights to objects made during the term agreement, liability of the parties and the procedure for resolving disputes and others.

The purely political nature of the Accords is evidenced by the linguistic markers that determine the vector of future activities of the signatories, without stipulating their obligations: “signatories are committed to”, “signatories plan”, “signatories intend”, “signatories note”, “potential future directions of cooperation”,” future researches and use of outer space”. In addition, Section 1, “Purpose and Scope”, states that the purpose of the Accords is precisely to form a common vision for improving the management of civilian researches and the use of outer space in order to promote the Artemis Program. Section 2 “Implementation” literally states that further cooperation on space exploration and use may be based on relevant instruments, such as Memoranda of Understanding, appropriate action under existing intergovernmental agreements, inter-agency arrangements and other documents.

Extraction of space resources: preconditions and alarming consequences

Section 11 “Conflict Prevention” defines the concept of “safety zones” around areas where activities are conducted, which could potentially lead to harmful interference in other activities. These zones will be created, changed, developed or terminated depending on the status of a particular activity. The first reaction of the international community was the question of whether security zones would turn into attempts to establish national sovereignty on celestial bodies or their occupation, which is prohibited by Art. 2 of the Outer Space Treaty. However, the answer to this question depends on the scale of the activity that will be carried out by one or another subject of space activity on the celestial body.

Formally, the drafters of the Accords answered to this question by pointing out in paragraph 11 of Section 11 the obligation of the signatories to respect the principle of free access to all areas of celestial bodies and all other provisions of the Outer Space Treaty when using security zones. However, paragraph 4 states that the signatories undertake to refrain from any intentional actions that may create harmful interference with each other’s use of outer space in their activities.

Depending on the interpretation of these points, in practice the situation may look like this. When Entity 1 establishes an appropriate security zone in an area of a celestial body, the free access of Entity 2 to that area, which allegedly exercises its right under paragraph 11, may be regarded by Entity 1, as a harmful interference with its use of space. At the same time, Entity 1, in practice, can engage in space activities in the same area of ​​the celestial body for quite a long time, building the necessary infrastructure for the life and work of its personnel. Thus, if during this period the legislation on the Earth changes, and the Outer Space Treaty in certain circumstances loses force or the corresponding changes will be made to it, the Entity 1 can get the property rights to the constructions and buildings located there, without acquiring ownership of the ground beneath them, as determined in particular by the institution of superficies in Roman law.

The concept of “security zones” was already discussed in 2016 by the Hague Working Group on Space Resources Management. As a result, in 2019, the Building Blocks for the Development of an International Framework on Space Resource Activities were developed and agreed upon. They do not allow for a double interpretation of the very concept of “security zones” and the obligations to operate in them, set requirements for security measures in such zones (block 11.3) and conduct appropriate international consultations on their establishment (block 11.4).

Section 10 “Space Resources” declares that the extraction and use of space resources from the surface or subsoil of the Moon, Mars, comets or asteroids must be carried out in a manner consistent with the provisions of the Outer Space Treaty, and the mining of space resources is not a national appropriation under Article 2 of the Outer Space Treaty.

Neither the Artemis Accords nor the Outer Space Treaty contain direct prohibitions on the establishment of ownership of space resources. This means that the general recognition by all signatories of the legality of exploitation and subsequent recognition of ownership of space resources is a kind of legal prerequisite for participation in the Artemis Program. It is noteworthy that the three signatory states of the Accords settled in advance the issue of commercial mining on celestial bodies. These are the USA (US Commercial Space Launch Competitiveness Act, 2015), Luxembourg (Space Resources Law, 2017) and the UAE (Federal Law №12, 2019).

However, Australia is currently the only signatory to the Artemis Accords, which is also a signatory to the Agreement on the Activities of States on the Moon and Other Celestial Bodies (1979). Article 11 of this Agreement establishes that the Moon and its natural resources are the common heritage of mankind, and that the Moon’s subsoil, areas of its surface or subsoil or natural resources, where they are located, may not be owned by any State, international intergovernmental or non-governmental organization, national organization or non-governmental institution or any individual.

A new era of public-private partnership in space

The agreement does not prevent the signatory states from involving private entities in fulfilling the terms of further agreements. On the one hand, the Agreement does not contain direct bans on attraction, and on the other hand, the United States is the flagship of space activities at the national level on the basis of public-private partnership (PPP). Therefore, by opening the Artemis Accords for signing, the USA is trying to show its counterparts the urgency and economic justification of the PPP.

The United States has already involved a number of private companies in the Artemis Program, such as Blue Origin, Dynetics, Lockheed Martin, and SpaceX. The only limitation set out in the Accords, namely Section 8 “Publication of Scientific Data”, is that the obligation to openly exchange scientific data does not apply to the private sector unless such transactions are carried out on behalf of a party to the Accords.

“Wolf amendment”

China has refrained from signing the Artemis Accords. However, even with its readiness, this decision would have significant political obstacles. Since 2011, NASA has been banned from cooperating with the Chinese government or other organizations associated with China (the so-called “Wolf Amendment” is a term mostly used by China). In cases where cooperation is strategically necessary, NASA is required to obtain congressional approval for specific interaction and on condition of the exchange of research data with research institutions around the world. The legal ban on NASA’s use of bilateral cooperation with China does not apply to activities certified by NASA in Congress that do not pose a risk of transferring technology, data, or other information related to national security or the transfer of which could have consequences for US economic security, and which does not involve establishing contact with officials identified by the United States as directly involved in human rights abuses.

Ukraine: expression of consent and relevance of accession

The main advantage of the Artemis Accords is the spread outside the USA of the already successful on its territory scenario of public-private partnership in space activities, promoting the commercialization of such activities by involving international partners and private entities able to fit harmoniously into the overall system of the program at all stages from a technical point of view. The Artemis Accords is not and could not be deprived of a certain US claim to world leadership in deep space exploration. However, it is the United States that deserves the credit for building new diplomatic bridges between the states that have been engaged in space activities only recently, as well as those states that previously had no precedent for interaction with each other in the space sector.

For Ukraine, the signing of the Artemis Accords is gaining new relevance also for the reason that this step will be a prerequisite for further conclusion of the Framework Agreement between the Cabinet of Ministers of Ukraine and the US Government on cooperation in space exploration and use in peaceful purposes (Framework Agreement of March 31 Expired on January 22, 2019).

Another legal question now arises as to how Ukraine will agree to be bound by the Accords. In accordance with paragraph 1 of Art. 9 of the Constitution of Ukraine, part of the national legislation of Ukraine are those international treaties, the binding nature of which was approved by the Verkhovna Rada of Ukraine. At the same time, paragraph 2 of Article 9 of the Law of Ukraine “On International Treaties of Ukraine” stipulates that in particular, political agreements are subject to ratification (such as cooperation). In this context, it should be recalled: Section 1 of the Agreement itself declares that accession to the Accords constitutes a political commitment to the principles described therein, and Section 13 does not provide direct guidance on how states may agree to be bound by the Accords, besides the actual indication of the accession mechanism in the form of a signature in addition to the text of the US Government Agreement.

Thus, the way in which Ukraine will agree to be bound by the Artemis Accords will depend on the following factors: 1) which way the states will agree (Article 8 of the Law of Ukraine “On International Treaties of Ukraine”); 2) whether the Accords will be ratified depending on the level of the signatory on the Ukrainian side (interdepartmental agreement; agreement on behalf of the Government of Ukraine; agreement in the form of the Decree of the President of Ukraine – in accordance with Articles 12-13 of the Law of Ukraine “On International Treaties”).

As of November 13, 2020, it is impossible to make a final legal conclusion, as the official sources (neither on the SSAU website nor on the NASA website) do not contain the full text of the Accords signed by the Ukrainian side.

Conclusions

For Ukraine, accession to the Artemis Accords is a significant step that allows it to fully demonstrate all the accumulated technical potential. In particular, to offer for the implementation of the Artemis Program its own concept of research and industrial base on the Moon developed by the Design Bureau “Pivdennyi”, as well as other examples of space technics.

However, further agreements, which will be concluded between the two parties and will clearly define their rights and obligations in the framework of such cooperation, will be crucial for cooperation between Ukraine and the United States in the deep space program. Specialists in commercial law, private international law, international space law and many other legal practices will need to be involved in the preparation and examination of such international agreements in order to prevent potential risks and inconsistencies.

As for the role of the Artemis Accords in establishing relations between the two space powers, its main purpose is to confirm the readiness of the counterparties to work together on the basis of the principles set out in the Accords, than to “open the door” for further negotiations and the conclusion of subsequent, already more specific, transactions. This is the political nature of the Accords, which does not currently create legal obligations for the parties.