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In May 2020, NASA announced the Artemis Accords, a set of principles on the basis of which the US would enter into agreements with other countries to govern the civil exploration and use of outer space and lunar resources. The principles are named after NASA’s Artemis project, which aims to send the first woman and another man to the moon by 2024. These come around the same time as Space X became the first private company to send astronauts to the International Space Station and Virgin Orbit attempted to test its satellite launcher. A Morgan Stanley report considers that the space exploration industry could be a trillion-dollar industry by the year 2040. The Artemis Accords therefore seem to be a timely intervention in an area which is governed by an international legal framework which is due for an update.
The Artemis Accords
The principles that have been laid down are:
(i) Peaceful purposes: All activities in space and on the moon must be conducted for peaceful purposes.
(ii) Transparency: States will have to publicly describe their policies and plans in a transparent manner.
(iii) Interoperability: States will be required to support the interoperability of systems used to the greatest extent possible.
(iv) Emergency assistance: States will reaffirm their obligations to provide emergency assistance to astronauts in keeping with the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. The US and other state signatories would also commit to providing all necessary assistance to astronauts in distress.
(v) Registration: The Artemis Accords reinforce the importance of registration of space objects (both public and private) and urges states to sign the Convention on Registration of Objects Launched into Outer Space.
(vi) Release of scientific data: States would be required to publicly release scientific data.
(vii) Protecting heritage: States would commit to the protection of historic sites and artefacts in space.
(viii) Space resources: The Artemis Accords attempt to reinforce that space resource extraction and utilisation would be conducted under the auspices of the Outer Space Treaty 1967 (“OST”).
(ix) Deconfliction of activities: The Artemis Accords envisage the setting up of “Safety Zones” and also coordination between states to respect such safety zones.
(x) Orbital debris and spacecraft disposal: The Artemis Accords envisage parties acting in accordance with the principles reflected in the Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space.
The Artemis Accords also envisage states to agree to plan for the mitigation of orbital debris, including a mechanism for disposal of spacecraft at the end of missions.
Planning agreements under the Artemis Accords, and planning for disputes
These ten principles, and the potential future agreements, seem to be an indication to develop international consensus (through bilateral agreements) for the exploration and potential commercial exploitation of lunar and other space resources. The Artemis Accords are said to have been developed keeping the principles governing the OST in mind. However, they seem to be going further than the OST, which did not name the exploitation of space resources and specifically referred to the use and exploration of outer space as the “province of mankind”. Article II of the OST states 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. The OST also focuses on the prevention of the use of outer space to carry out nuclear warfare. The provisions in the OST are not very clearly drafted in certain instances, and the US would argue that the Artemis Accords only seek to clarify, on a bilateral basis, those provisions which are not clear. The details of each agreement would each state would have to be negotiated, and would have to cover other practical details such as the resolution of any future disputes. One potential method for dispute resolution that could be adopted is inter-state arbitration. In this area a ready-made solution already exists for consideration. The Permanent Court of Arbitration unveiled special rules governing space disputes in 2011 (available here). This includes model arbitration language for use in agreements. It remains to be seen how other states react to the proposal from the US and whether the Artemis Accords could reflect a growing international consensus on the exploitation of space resources in the future.
Conclusion
The OST was agreed between various states during the Cold War, and its provisions reflect the concerns of that time period. However, with recent technological advancement, an increasing number of states and private entities are involved in space exploration. This might be the right time for states to reconsider the legal framework that governs the exploration and exploitation of space resources. How other states will respond to US proposals remains to be seen. Going forward, private entities and states involved in spacefaring will need to keep an eye on these and other developments in this very specialised field of international law and dispute resolution.
Matthew Weiniger QC and Akshay Sewlikar comment further in Global Arbitration Review in January 2021 here: Global Arbitration Review - The Artemis Accords: lift off for space law and arbitration?