The Artemis Accords: A Turn Towards International Cooperation or a Weapon for Establishing U.S. Hegemony?

By Kanishka Bhukya
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Kanishka Bhukya is a 2nd  year B.A./LL.B student at the National Law School of India University.

On October 13, 2020, eight countries (the United States of America, the United Kingdom, Australia, Japan, Canada, Italy, the United Arab Emirates, and Luxembourg) signed the Artemis Accords Principles for a Safe, Peaceful, and Prosperous Future. [1] Just after that, on November 13, 2020, Ukraine became the ninth signatory to this set of non-binding principles which actively seek to direct the behavior of countries participating in outer space exploration in the context of NASA's Artemis Program to place the first woman and the next man on the moon. [1]​

These Accords appeared innocuous and insignificant when they were first publicly disclosed by NASA. It was envisioned that foreign astronauts would receive emergency assistance if they were in danger or trouble, and that space travel plans and research would take place in a transparent way, with findings disseminated in a timely manner for the benefit of all humanity. A closer look at the Artemis Accords, however, reveals a different picture. It gives the idea that the Accords are about using and exploiting the moon to retain American dominance, potentially to the point of subverting international law. As Stephan Hobe, the Director of the Institute of Air Law, Space Law and Cyber Law at the University of Cologne, put it, “The Artemis Accords are an attempt by the Americans to walk softly to legitimize their deviation from the Outer Space Treaty.” [2]

In this context, the primary objective of this article is to demonstrate how the US plans to achieve global hegemony in space and defy international treaties and instruments by enacting multilateral treaties such as the Artemis Accords in the hope that they may eventually develop into customary law.

The Artemis Accords disrupt the conventional framework for developing policies for space governance by taking an alternate route to the customary approach of going through United Nations channels. They do not, however, propose new legal principles; rather, they simply operationalize the Outer Space Treaty (OST), a multilateral UN operationalised treaty that serves as the foundation of International Space Law in the present world. The Artemis Accords are mainly framed within the boundaries of the OST and execute the latter while providing some details for clarity's sake. Certain sections, on the other hand, bring new ideas or interpretations, and these are the kinds that are the most contentious.

The clause dealing with the extraction of space resources, for example, was the one that sparked the most debate. While the OST does not directly forbid the exploitation of minerals in outer space, it does emphasize the principle of non-appropriation through Article III. [3] However, Section 10(2) of the Accords interpreted this principle in a unique way, stating that “the Signatories affirm that the extraction of space resources does not inherently constitute national appropriation.” [4]

Such an interpretation is consistent with the US' own position on non-appropriation, as exemplified by the Commercial Space Launch Competitiveness Act, which it seeks to legitimize internationally. According to the aforementioned Act, a “United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including the right to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the United States’ international obligations.” [5] As evidenced by this provision, the Artemis Accords are just an attempt to universalize this view of these principles, and they have been judged as a unilateral attempt to sidestep the OST and international law.

Proponents of the US’ position have interpreted the concept to suggest that it only prevents appropriation through territorial sovereignty, and therefore space resources are not covered. They also draw a comparison with commercial fishing in the high seas, where fishing is not forbidden and is not understood as a statement of state sovereignty because the resource is tied to the title. From this, they argue that a similar strategy should be applied to space resources as well.

However, such an analogy does not hold water because Article 87 of the UN Convention on the Law of the Sea expressly permits for fishing in the high seas, whereas no such acknowledgment has been made in international outer space treaties. [6] Not only is there no acknowledgment, but Article 11 of the Moon Agreement, introduced by the UN Office for Outer Space Affairs, designates outer space as "Common Heritage of Mankind," making all extra-terrestrial resources common goods. [7] The Moon Agreement, in essence, prohibits state and commercial entities from taking possession of natural resources on the Moon and other celestial bodies. As a result, Section 10 of the Artemis Accords, which allows for the sole use of lunar resources, is clearly in breach of the Moon Agreement. However, the Moon Agreement suffers from the fact that it has not been signed by the US and the majority of the leading space-faring nations, making it difficult to enforce.

Moreover, Section 11 of the Artemis Accords establishes Safety Zones to avoid unwanted or harmful interference, so advancing the idea of "due regard" as specified in Article 9 of the OST. [3] However, such an installation is in marked contradiction with the freedom of exploration and use promised by Article 1 of the OST, as any kind of deployment of such Safety Zones may result in alienation and isolation of other states. This would imply that some feeling of sovereignty is asserted here if the zones are interpreted as belonging to a specific state.

Therefore, the fundamental question now is whether the Artemis Accords are in breach of international law. Their claimed goal is to "create a shared vision through a realistic set of principles, rules, and best practices." [4] That is, they do not claim to be the foundation of new laws and hence cannot, technically speaking, contradict current international law. However, it is a savvy ploy by the US government to draught recommendations in the expectation that they may eventually develop into customary law, weakening the existing space laws.
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The Vienna Convention on the Law of Treaties specifies when a "subsequent practice" may be used to influence the interpretation of a treaty. [8] The treaty stipulates that in such circumstances, total unanimity is not required, and that even the opinion of one or a few states does not constitute international law. And, given this broad consensus on when an interpretation of a law becomes a "subsequent practice," it is worth noting that the Accords becoming a "subsequent practice" and so influencing the general interpretation of the Outer Space Treaty is unlikely for the time being. This is due to the fact that, first, only a few countries have agreed to sign the accords so far, and, second, notable space-faring countries such as Russia and China are clearly apprehensive of it. Furthermore, because no international committees were formed, no broad talks were held, and the accords were merely imposed by the US, even if other governments later sign this pact, the question of whether their approval is essentially illusory would always be present. [9]​

[1] Azcárate Ortega, A., 2020. Artemis Accords: A Step Toward International Cooperation or Further Competition?. [online] Lawfare. Available at <https://www.lawfareblog.com/artemis-accords-step-toward-international-cooperation-or-further-competition> [Accessed 7 April 2022].
[2] Keynote Speech, International Astronautical Congress 2020, quoted in Stirn. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty).
[3] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 U.N.T.S. 205, entered into force, Oct. 10, 1967.
[4] The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, NASA, <https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf>
[5] US Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704.
[6] UN General Assembly, Convention on the Law of the Sea, 10 December 1982, available at: <https://www.refworld.org/docid/3dd8fd1b4.html> [accessed 7 April 2022]. 
[7] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, done on Dec. 18, 1979, xvii I.L.M. 1434. 
[8] Vienna Convention on the Law of Treaties, Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.
[9] Azcárate Ortega, Almudena. 2020. "Artemis Accords: A Step Toward International Cooperation Or Further Competition?". Lawfare. <https://www.lawfareblog.com/artemis-accords-step-toward-international-cooperation-or-further-competition> [accessed 7 April 2022]. 
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