By Frans von der Dunk
Since a few years, the Moon is fully back in business. Unmanned Chinese and Israeli lunar landings have occurred; the European Space Agency (ESA) introduced its very broad and open Moon Village concept; India is seriously envisioning manned lunar flights; a Japanese billionaire has pre-booked a circumlunar flight with a private company; and, last but far from least, NASA announced its Artemis programme which should land the first woman and the next man (at least as far as the United States is concerned) on the Moon by 2024.
The latest major step here is NASA’s announcement of its intention to open up its lunar exploration programme to participation by other countries. The Artemis programme is viewed by many as the successor to the International Space Station (ISS), a major international space project led by the United States and involving more than a dozen other countries. The ISS project however was legally covered by a single all-encompassing international treaty, whereas the participation of other countries in Artemis and the resulting international cooperation in lunar exploration would be arranged through a series of bilateral agreements between the United States and such countries, the so-called Artemis Accords.
By means of these Accords, NASA will require its partners to comply with a series of principles on outer space, lunar exploration and exploitation.
Most of them will not raise legal issues, as they actually echo provisions of the seminal 1967 Outer Space Treaty, to which not only the United States but all major spacefaring nations in the world are parties. This concerns, for instance, the principle that the exploration of outer space should be for peaceful purposes (following Articles I and II), the need to register space objects launched (following Article VIII and a further 1975 Registration Convention), the need to provide emergency assistance to astronauts in distress (following Article V and a further 1968 Rescue Agreement), and transparency with respect to plans and activities on the Moon as well as the free international sharing of scientific data (following Article XI).
Other principles constitute mere elaborations or examples of practical implementation of the Outer Space Treaty, such as technical interoperability of space systems, and general compliance with the UN voluntary guidelines on long-term sustainability of space activities and the mitigation of space debris as this is rapidly developing into a set of binding legal norms itself.
Some of the principles to be addressed by the Accords, however, do raise more complex issues.
For example, NASA in its announcements calls for respect and protection of the Apollo landing sites and those of robotic lunar missions. Yet, the Outer Space Treaty in its Article II famously excludes the application of State power to the Moon as if the Moon was part of national territory whereas the exploration and use are “the province of all mankind” as per Article I, positing the fundamental freedom of all States to undertake such exploratory activities. Such absence of territorial sovereignty of the United States over any part of the Moon pursuant to Article II and the absence of any internationally agreed special legal status and protection of special places like the Apollo landing sites makes such protection a matter of courtesy, rather than something that can be unilaterally imposed by NASA or indeed the United States.
Further to Articles I and II, moreover, the Outer Space Treaty in Article XII specifically provides for free access to “all stations, installations, equipment and space vehicles on the Moon (…) on a basis of reciprocity”, referring only to “maximum precautions [which] may be taken to assure safety and to avoid interference with normal operations”.
Yet, NASA also calls for the creation and acceptance of ‘safety zones’ around sites to be used for Artemis operations. The devil is in the details, but while it could be argued that safety zones are intended to avoid harmful interference in accordance with Article IX of the Outer Space Treaty, they would sit uneasily with the general requirements of open access and the provision of Article II that “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.
On both counts, of course partners interested in working with the United States and NASA are entirely at liberty to accept, in the context of such bilateral relations, an obligation vis-à-vis the United States and NASA to honour the landing sites and/or to agree to the safety zone concept, and what it means specifically for their rights of access. By the same token, however, the establishment of safety zones may be legally untenable against third parties not signing up to the Artemis Accords.
An even more complex legal issue pertains to the follow-up on scientific exploration. The baseline rule of full freedom for States to conduct such exploration may not be in doubt, but NASA – like the space agencies of most other spacefaring countries – is charged not only to develop science for its own sake, but also to try and make sure society benefits from scientific discoveries by way of space products and services and their spin-offs. In the specific context of the Moon, this means that lunar exploration should also in principle benefit more commercially oriented projects on ‘space mining’ and ‘in-situ resource utilisation’. Not accidentally, the preconditions for cooperating under the Artemis Accords include recognition of such follow-on commercial exploitation as well.
The Outer Space Treaty itself, drafted in a timeframe when commercial space resource utilisation was not seriously considered, does only provide for a handful of general principles that are relevant, but rather abstract still. The aforementioned principles of Articles I and II effectively design outer space as an international area, a ‘global commons’ as it were, where the freedom for States to act is the default legal principle and limitations to such freedoms can only be established by international law. Given that States are also held fully responsible (under Article VI) and liable (under Article VII) for private space activities, mirror-wise the freedom for States to act includes the freedom to allow their private sector to act, as long as compliant with the applicable rules of international (space) law. Article VI actually to that end provides for an obligation to authorise and continuously supervise relevant non-governmental activities, an obligation usually implemented through the drafting of national space legislation.
The United States has therefore, following the above interpretation of the legal status of outer space, included a Title IV in its 2015 Commercial Space Launch Competitiveness Act to start the process towards developing the appropriate authorisation and supervision structure, while acknowledging the principled right of the private sector to undertake such commercial activities under its aegis. Luxembourg in 2017 and the United Arab Emirates in 2020 have adopted similar national legislation, effectively thereby condoning the US approach, and a number of other countries have meanwhile engaged in extended discussions on what limits and conditions there actually are, respectively should be, at the international level with regard to such private mining operations, while acknowledging the basic right for individual States to allow the private sector to become engaged within such limits and conditions.
Not all countries, however, as yet agree to this approach. Basically arguing that the international character of outer space as a realm and of its exploration and use as ‘the province of all mankind’ means that also any resources in that realm are the common property of all States together. They claim that unilateral approval of commercial exploitation is not in compliance with the Outer Space Treaty, and that only an international regime, notably – presumably – including an international licencing system, could legitimise such commercial exploitation.
Because of this disagreement, the issue effectively becomes political. Regardless of the extent to which the claim of the opponents to unilateral State endorsement of commercial exploitation would be legally valid, if US entrepreneurs (or those from other States for that matter) would be faced with limitations to their hoped-for markets simply because other States would view resources thus harvested akin to blood diamonds or other illegal contraband, their interests in investing billions into this – still very risky – business might well disappear.
From that perspective, the Artemis Accords should also be seen as an effort on the part of the United States to convince those countries that have not yet openly condoned its approach to now do so, at least for the sake of participating in the Artemis programme. To the extent it would then achieve that objective, it would create a yet stronger presumption that the US interpretation of the Outer Space Treaty in this respect is correct. Ultimately, the proof of the pudding is in the eating, but that the Artemis Accords, once successfully and broadly agreed to, would present a major step in the development of the law, in lockstep with the resurging attention to the Moon, is beyond any doubt.
Frans von der Dunk is a Professor of Space Law at the University of Nebraska-Lincoln. He is an expert in aviation and space law.