Happy Birthday Artemis Accords
Am I still allowed to be skeptical?
I have a love-hate relationship with the Artemis Accords. Well mostly a hate relationship, if I’m completely honest. But as the Accords reached their 5th birthday last month, and a 60th signatory on November 1st, it seems like there should be cake, champagne, and much space governance celebration to be had. So maybe I should give up my cynicism, and acknowledge there is something important happening here.
To be sure, a document that provides clarity and guidance on best practice for new activities about to unfold on and around the Moon is exactly what the world needs right now. And apparently 60 countries consider this to be just that document. Freely and of their own will. It’s just that I can’t shake the feeling I’ve had since the inception of the Artemis Accords that this, in fact, is not the document that should be leading the way. Because of how it was written, by whom, and to what ends.
I’m not sure I want to celebrate. But maybe I’m behind the times now and just need to catch up.
(I should note that this post is a full week late, for which my apologies for anyone tracking! I am currently in the Philippines for the Asia-Pacific Regional Space Agency Forum, and just one week ago I was in Europe reconnecting with some old friends in memory of one dear friend in particular. And in between we are selling our apartment and buying a new one. So, lots of life happening, which means I’m late on delivering this to your inbox, and it may be a bit shorter and less polished than my usual installments. My next post will be all about space in the Asia-Pacific region and, life adventures depending, will be back to my regular two-weekly cadence.)
60 Signatories??!!
On November 1st, Latvia became the 60th country to sign the Artemis Accords. That’s huge. 30% of the world’s countries have now expressed their agreement with this set of non-binding principles. And among those 60 there are many countries that don’t have advanced space programmes, aren’t necessarily going to contribute anything directly to the NASA Artemis lunar programme, and may not even stand to benefit in any identifiable way from lunar activities under the Artemis programme — or any other lunar programme.
This includes countries like Angola, Bulgaria, the Dominican Republic, Senegal, and Uruguay. I don’t highlight those countries with any assumption that they couldn’t become key partners in a lunar programme, but to show the geographical and geopolitical diversity, and the fact that these aren’t just the leading space powers.
That’s a long way since the first seven countries that signed on with the US in 2020, which included Australia, Canada, Japan, Luxembourg, Italy, the United Arab Emirates, and the United Kingdom. Those were invited by the US to sign, either because they are clearly “like minded States” or aspiring space powers, and because they were all existing or potential contributors to Artemis.
Now, it’s a third of the entire planet who has signed on. Which is not, I think, what the drafters expected, and not what a certain international lawyer would have hoped to see over time. Why would I not celebrate this? Well, the Accords are complicated politically, even if it’s an elegantly simple document.
What exactly are the Artemis Accords?
The Accords contain 10 principles. That’s a really good design basis for an international non-binding document that’s intended to provide guidelines where there is a lack of multilateral agreement on how to govern new lunar activities. 10 simple principles.
Some of the principles are very pragmatic and sensible, like ensuring interoperability (basically make sure you don’t have USB A when I have USB C, make sure our Apples and Androids are compatible), sharing scientific data, having space debris mitigation plans in place, emergency assistance and registration of lunar space objects. Old school, Outer Space Treaty kind of principles.
Some are values based, like the reiteration of the peaceful purposes principle from the Outer Space Treaty: “cooperative activities under these Accords should be exclusively for peaceful purposes and in accordance with relevant international law”; and a transparency principle, that commits signatories to broad dissemination of findings from lunar activities, and transparency regarding the nature of those activities.
And then there are two contentious principles, the ones which do the heavy lifting. The ones that assert a specific interpretation of international space law.
Principle 10 states in no uncertain terms that “The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.” So mining the moon, or asteroids, or other planets, is deemed to be lawful.
I’ve written in previous posts about the reason this is contentious. Article II of the Outer Space Treaty prohibits national appropriation in space, whether by claims of sovereignty or by any other means. The US, Luxembourg and the UAE have enacted domestic legislation stating they don’t consider resource extraction (or use, or sale for profit) to be national appropriation. Some international lawyers differ on this. I certainly did when the US law was adopted in 2015, and I also did when the Artemis Accords were made public.
But with popular support emerging for the Artemis Accords, maybe that doesn’t matter any more. States are expressing agreement with the US interpretation by signing the Accords. Because we don’t have any State practice yet (which makes up one half of the formation of customary international law), it’s even more important what States are saying they believe the law to be. That’s opinio juris, the other half of the formation of customary international law.
It seems a new interpretation of the non-appropriation principle may be emerging.
Then, Principle 11 describes “deconfliction of space activities”. As a safety principle it makes sense to say if I’m busy with some complex operations over here, you can’t have your operations too close, or we might run into some issues. Setting up safety zones, as this principle suggests, could be sensible. One key reason is environmental. Lunar regolith, or Moon dust, is extremely abrasive and can be kicked up very easily, so if your robotics or prospecting is too close to mine, then we could actually destroy each other’s equipment.
However this is also contentious, because a “safety zone” could essentially become an “exclusionary zone”. So while not exactly “appropriating” a part of the Moon in breach of the Outer Space Treaty, it could have a de facto effect of claiming right of access to a certain part of the Moon to the exclusion of all others. Thinly veiled appropriation.
Why am I not a fan?
The thing is, the Accords weren’t really international at their inception, and certainly weren’t multilateral. The Accords were drafted unilaterally, then presented to a few select, invited partner countries behind closed doors. Signing the Accords was a pre-requisite for being part of Artemis. Those seven countries became the first signatories, all very keen to be part of the US’ return to the Moon.
This makes it a very politically loaded document. Essentially, the original signatories were told: sign up to our interpretation of the Outer Space Treaty, or you can’t be part of Artemis.
The Accords were dreamed up by two people, literally sketched out on the back of a napkin during an international flight several years ago. One of them was the Associate Administrator of NASA, Mike Goldman, the other was a Department of State lawyer who worked on a lot of US space law and diplomacy, Gabriel Swiney. I have enormous respect for Gabe Swiney, and have had really enjoyable debates with about the Artemis Accords, both in public and in private. He is super smart, very committed to his work and a bigger vision, and really candid about the political processes behind US foreign policy and legal decision-making. And I take issue with a lot of that decision-making, as Gabe knows.
The week that the text of the Accords was made public, mid 2020 some time (pandemic time is all a blur for me) I was invited to speak on a virtual panel hosted by the Space Court Foundation, which included Gabe Swiney, to talk about these new Accords from an international perspective. It followed another virtual panel a couple of days previous, where Mike Gold spoke alongside some other international commentators with similar concerns to mine. Both Mike and Gabe were a bit taken aback by the criticism and concerns they heard. They were genuinely excited and (rightfully) proud of this document and its potential, and were surprised there would be such pointed critique.
But the fact that the commentators had shared concerns says a lot. Several of us pointed out to them that a unilaterally drafted document, which asserts the contentious US interpretation of the Outer Space Treaty, and requires others to agree with that interpretation or stay out of Artemis, is highly problematic. Process matters. Maybe not everyone wants the US to be the dominant political and legal voice in this new race to the Moon, a race for her resources. (And this was before the madness of Trump 2.0.)
I have maintained that position consistently. Process matters. The exclusion of voices and perspectives other than a sole, dominant one as we move towards governance of brand new technological endeavours, matters. Geopolitical force matters. It’s good to move towards solutions, but how we get there matters. Because how we get there, and who’s included in that pathway, determines a lot about the outcome.
How did we get from 7 invited partners to 60 signatories?
Lots of media commentary liked to point out that China and Russia were not signing the Accords, asserting they were refusing, or being spoilers in an international effort to agree on principles. But at its inception, the Accords were invite only. A series of bi-lateral, non-binding agreements between NASA and the space agencies of seven countries it was willing to partner with on the Artemis programme. The US was not inviting China or Russia to join the party.
In fact, there’s an infamous piece of legislation in the US called the Wolf Amendment, which prevents the US from collaborating with China on space programmes, because it would involve sharing technologies which resemble missiles, and therefore raise national security concerns. There are endless (quite interesting) debates about whether the Wolf Amendment should be appealed, but let’s be clear: the US is refusing to play with China in space. China was not refusing to join the Artemis Accords. China may not want to play with the US either, but the door was never open in the first place.
But then, the Accords began to morph into something different. The text didn’t change, but the character of the document did. Gabe Swiney told me that NASA and the State Department were both (pleasantly) surprised when countries started approaching them to say they wanted to sign the Accords, and wanted a signing ceremony. These were not necessarily countries wanting to be part of the Artemis programme directly, though some might have been signing the Accords as a way in. Some, however, were signalling something political rather than technical.
After a while, it became apparent that any country could sign or adopt the Accords, with or without the US signing a piece of paper at the same time, and with or without a signing ceremony. It has become an international signalling.
It was also interesting to track that some countries would have their space agencies sign the Accords, others would have their Minister of Foreign Affairs sign (which would indicate an intention to engage the nation as a whole, rather than just an inter-space agency agreement). Different countries considered the act of signing in different ways.
Now, when there are large international space conferences, like the annual International Astronautical Congress, there are multilateral meetings of all the Artemis Accords signatories. An enormous opportunity for political alignment, for campaigning for more countries to sign, and for asserting the Accords as the central narrative for governing lunar activities which are set to explode in scale by the end of this decade.
So maybe I need to hang up my cynical hat, and stop complaining about process, and just accept that this particular lunar governance solution has already gained traction. Countries clearly want something rather than nothing, and there is a lot of sense in the pragmatic principles in the Artemis Accords.
It’s just that I maintain my concerns about the geopolitical and commercial competition for lunar real estate that is already unfolding, even before the necessary technologies have been proven.
The Artemis timeline is a total mystery right now, with hundreds of NASA jobs having been cut, hundreds of space policy jobs cut in other departments, the NASA budget having been gutted, and a new administrator lined up (is Jared in or out??) who is thoroughly committed to commercial space providers changing the course of NASA as a whole and Artemis in particular. But whether or not the US-led programme continues, the basic governance framework appears to have already been cast. And it makes very clear that resource extraction for profit is accepted.
Where this takes us in the next few years remains to be seen.