Source: The Space Review

On the screens of attendees of the virtual International Astronautical Congress October 13, as well as anyone who tuned in to NASA TV, was a three-by-three array of screens, a fancy version of video chats that have become commonplace. In each window, a government official put pen to paper; some matter-of-factly, others proudly showing off the document they signed.

The nine officials represented the United States and the seven other nations that were formally signing the Artemis Accords: Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom. (Japan was represented by two ministers, hence the nine people.) All of the countries had previously expressed interest in participating in the Artemis program, and some had either already signed cooperative agreements with NASA or committed to participating in the lunar Gateway.

Each offered brief remarks on the document they signed. “We’re so proud that our agency, just two years old, could stand shoulder to shoulder with NASA and our counterparts from across the globe on the stage today to confirm our commitment to a safe, peaceful, and prosperous future,” said Megan Clark, head of the Australian Space Agency.

Others offered similar comments. “The Accords help us to work together for the benefit of all. It is in this spirit that we welcome this initiative that NASA has taken to strengthen the broad principles of peaceful human exploration and coexistence in space,” said Sarah Al Amiri, minister of state for advanced technologies in the UAE and chairwoman of the UAE Space Agency.

“The Artemis Accords are crafted to prevent conflict before it happens,” argued NASA administrator Jim Bridenstine, who was at the center of the Accords effort, figurately and literally: his screen was in the middle of that three-by-three array. “Fundamentally, the Accords are about avoiding conflict, transparency, public registration, deconflicting activities. These are the principles that will preserve peace.”

The Artemis Accords, of course, are not new: NASA announced them in May, describing them as “framework for how we’re all going to cooperate on the surface of the Moon,” as Bridenstine said at the time (see “What’s in a name when it comes to an ‘accord’?”, The Space Review, July 13, 2020). Since then, the Accords generated considerable discussion and debate, even though the agency had yet to release the text of the Accords themselves. All NASA offered publicly was a list of principles that would form the foundation of the document.

With the signing ceremony, though, NASA did release the text of the Accords at last. Excluding the cover and table of contents, and the signatures at the end, the Accords span just seven pages, covering the ten principles introduced back in May. Some sections are remarkably brief: the section on “peaceful purposes” simply states, “The Signatories affirm that cooperative activities under these Accords should be exclusively for peaceful purposes and in accordance with relevant international law.”

The longest sections are for a couple of the more controversial sections of the Accords: space resources and deconfliction of space activities. “The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty,” the section on space resources states, but that extraction and use of space resources “should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities.”

The section on deconfliction discusses in detail the creation of “safety zones” around activities that could result in harmful interference with other activities. Those zones “will be expected to change, evolve, or end based on the status of the specific activity,” it states, and emphasizes that countries signing the Accords “commit to respect the principle of free access to all areas of celestial bodies and all other provisions of the Outer Space Treaty in their use of safety zones,” language which appears to address criticism that safety zones could be, in effect, a form of national appropriation prohibited by the Outer Space Treaty.

Bridenstine, in a call with reporters about the Accords, emphasized that they are intended not just to be consistent with the Outer Space Treaty, but also help enforce it. “Basically, the Artemis program will be a forcing function to adhere with the Outer Space Treaty,” he said, “That’s really what we’re doing with the Artemis Accords. We’re operationalizing the Outer Space Treaty.”

Mike Gold, NASA acting associate administrator for international and interagency relations, made a similar argument during a Space Court Foundation webinar last week about the Accords. “The one blemish on the Outer Space Treaty is that there isn’t a lot of incentive for compliance,” he said, something the Accords intends to address. “If you don’t take the Outer Space Treaty seriously, we’re not going to let you be a part of the Artemis Accords.”

Praise and skepticism

The text of the Accords, and the comments about it being used to support the Outer Space Treaty—the foundation of international space law—have addressed some of the concerns about the document in the international community.

“Before the actual text was released just last week when the accords were signed, I was quite skeptical,” said Cassandra Steer, a mission specialist at the Australian National University (ANU) Institute for Space and lecturer at the ANU College of Law, during the Space Court Foundation event. “Having read the text, some of those concerns have been put at bay.”

“The impression I had was that this text was written by diplomats,” said Andre Rypl, a diplomat at Brazil’s mission to the UN offices in Vienna and chair of the 62nd session of the UN’s Committee on the Peaceful Uses of Outer Space (COPUOS). “I saw here everything that I would like to see in terms of how it addresses the importance of the multilateral framework, how it addresses cooperation and transparency.”

That doesn’t mean, though, that they are completely satisfied with the text of the Accords. Both Rypl and Steer raised questions about the section on space resources, a contentious issue in international discussions in the last several years, particularly after the US enacted the Commercial Space Launch Competitiveness Act in 2015 that grants American companies rights to space resources they extract.

“The most pressing issue, I would say, is the matter of utilization of resources,” Rypl said. That includes how that would apply to commercial activities, or for countries that might have different interpretations of language in the Outer Space Treaty.

Australia, Steer noted, is the only country to sign the Artemis Accords that is also a signatory to the Moon Agreement, which takes a very different view regarding ownership of space resources. “There has been some tension between our office of international law and our space agency on that, and it’s still to be teased out how we are going to fulfill our obligation,” she said.

She wondered if this was an attempt by the US to make others nations accept its view on ownership of space resources. “That’s one of the biggest concerns, is this a way to force agreement?”

Gold disagreed with that view. “It’s perception versus reality,” he said. “If the US was trying to force its will or its own positions on other countries, the Accords, of course, would have looked very different.”

All countries, including those who have signed the Moon Agreement, agree that space resources can be used, he argued. The question, though, is how that is managed. “We couldn’t establish common ground around those topics, which is why that’s isn’t dealt with in the Accords,” he said. “Those are conversations we’ll have at COPUOS and elsewhere.”

The role of international organizations like COPUOS in the Accords was another topic of debate at the webinar. “It’s not a treaty. It’s not an international agreement, either,” said Guoyu Wang, who has been a Chinese delegate to COPUOS and has written about the Accords (see “NASA’s Artemis Accords: the path to a united space law or a divided one?”, The Space Review, August 24, 2020). “What will be the legal character of the Accords?”

“What impact will this have on the multilateral discussions we have at COPUOS?” Rypl asked. “Shouldn’t we be discussing some of these elements here: all the countries, all member states, together?”

“Bring this discussion into COPUOS,” he urged later in the webinar. “You may hear things you may not like or agree with, but that’s part of the game.”

Gold said it is NASA and the US government’s intent to involve the UN, through COPUOS, on the Artemis Accords. He noted the document requires the US to submit a copy to the UN for circulation to all member states. Other sections of the document also bring up COPUOS, such as the section on space resources that states countries “intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resources, including through ongoing efforts at the COPUOS.”

“To the extent that the Accords act as a catalyst to the UN engaging on issues like how do we define space heritage, further conversations on space resources,” he said, “I am literally trying to have those conversations. I know the UN will engage, but it’s COVID that’s prevented us from doing a lot of this.” COPUOS did not hold its annual meeting this summer because of the pandemic.

The US-led nature of the Accords, and the countries that have signed up, have also prompted criticism. “There is also, given the past four years, a distrust internationally about statements about multilateralism” from the US, Steer said. She cited the executive order earlier this year about promoting the United States’ views on these issues, including language that space is not a “global commons” and that the Moon Agreement is not customary international law. “That’s why people have these concerns.”

“There appears to be a preselection of whose voices get to be involved in determining the nitty-gritty” of the Accords, she said, putting later countries at a disadvantage. That could be a problem for broader adoption, she argued, such as what happened with the European-led International Code of Conduct for outer space activities from winning broader support a few years ago.

The Artemis Accords are open to any country, Gold responded. “In an ideal world, we would sit down with every country that could possibly participate in Artemis,” he said. “But we also cannot wait for every single issue to ultimately be resolved before going to the Moon.”

Or almost any country. Since the Artemis Accords are structured as bilateral agreements between the US and each nation, any involvement with China would likely run afoul of existing restrictions in federal law involving bilateral cooperation between NASA and Chinese entities. “NASA, as an agency, will always follow the law, and the law right now prohibits us from engaging China on bilateral activities,” Bridenstine told reporters. If the law changed, he added, “NASA stands ready, but that this point it’s just not in the cards.”

The seven countries that are first to sign are simply the first to get through their own internal reviews first. Gold, in that call with reporters, said he expected more to soon join. “We’re really looking forward to future announcements, even during this calendar year, of additional countries joining.”

The first might be Brazil. Last week the White House announced it formally invited Brazil to join the Accords, with the expectation that the country will do so. “I’m very glad to see that my own country has been invited to join,” Rypl said, “and, from what I’ve heard, things should move forward fairly quickly.”

With in-person meetings still limited for the foreseeable future, upcoming Artemis Accords signing ceremonies may again take on the look of a Zoom meeting. They might need a bigger screen, though.

Source: The Space Review