Signatories of the U.S.-Led Artemis Accords Meet in Person for the First Time

On September 19, 2022, representatives of the twenty-one Artemis Accords signatories met at the International Astronautical Congress in Paris for the agreement's first in-person meeting¹ since its launch on October 13, 2020.² Drafted by the United States, the Accords “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program.”³ “With the Artemis Accords,” Secretary of State Antony J. Blinken declared in November 2022, “the Department of State and NASA are bringing nations together through a common set of principles grounded in the 1967 Outer Space Treaty to guide civil space exploration, and set the stage for peaceful, responsible, and productive cooperation in outer space.”⁴ Although the provisions of the Accords—by its terms a “political commitment”⁵—are non-binding (other than those restating existing international law), commentators and critics, including U.S. international partners, geopolitical opponents, and space law jurists, have argued that the Accords attempt to establish a consensus on a U.S.-friendly interpretation of international space law, particularly regarding the ownership of space-based resources. While U.S. allies largely support the Accords, critics—especially China and Russia—have accused the United States of using the Accords to consolidate an understanding of international space law that favors U.S. commercial interests. Critics have also attacked the Accords for attempting to develop international space law outside of the traditional multilateral forum for such discussions and lawmaking, the United Nations. Even though the September meeting was “primarily an organizational one, with no major announcements or other findings emerging from it,” it signaled the increasing significance of the Accords in a new era of international space law.⁶ As Jennifer Littlejohn, principal deputy assistant secretary of state for oceans and international environmental and scientific affairs, noted, the meeting was “just the start of the conversation.”⁷

The Artemis Accords’ scope encompasses “civil space activities conducted by the civil space agencies of each Signatory . . . [that] take place on the Moon, Mars, comets, and asteroids, including their surfaces and subsurfaces, as well as in orbit of the Moon or Mars, in the Lagrangian points for the Earth-Moon system, and in transit between these celestial bodies and locations.”⁸ Signatories commit to ten principles “intended to increase the safety of operations, reduce uncertainty, and promote the sustainable and beneficial use of space for all humankind”: “peaceful purposes” (Sec. 3), “transparency” (Sec. 4), “interoperability” (Sec. 5), “emergency assistance” (Sec. 6), “registration of space objects” (Sec. 7), “release of scientific data” (Sec. 8), “preserving our space heritage” (Sec. 9), “space resources” (Sec. 10), “deconfliction of space activities” (Sec. 11), and “orbital debris” (Sec. 12).⁹ The agreement “affirm[s] the importance of compliance with” four of the five UN space law treaties (the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, and the Registration Convention, omitting the Moon Agreement), as well as “the benefits of coordination via multilateral forums . . . to further efforts toward a global consensus on critical issues regarding space exploration and use.”¹⁰ Joining the Accords grants signatories the opportunity to collaborate with partners on NASA's Artemis Program—the successor to Apollo—which seeks to put the first woman and first person of color on the Moon and establish a foundation for human missions to Mars and beyond.¹¹

The Accords’ focus on manned space exploration and the utilization of space-based resources reflects the priorities of contemporary U.S. space policy. In November 2015, President Barack Obama signed the U.S. Commercial Space Launch Competitiveness Act (Title I of which is called the Spurring Private Aerospace Competitiveness and Entrepreneurship Act or SPACE Act), which directed the president to “facilitate commercial exploration for and commercial recovery of space resources by United States citizens” and provided that “[a] US citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained.”¹² In April 2020, as the Accords were being drafted, President Donald J. Trump issued an executive order reaffirming the U.S. view that space is not a “global commons” and encouraging “international support for the public and private recovery and use of resources in outer space, consistent with applicable law.”¹³ The order directed “the Secretary of State [to] seek to negotiate joint statements and bilateral and multilateral arrangements with foreign states regarding safe and sustainable operations for the public and private recovery and use of space resources.”¹⁴ Consistent with this, one of the goals of Trump's National Space Policy was to “[e]xtend human economic activity into deep space by establishing a permanent human presence on the Moon, and, in cooperation with private industry and international partners, develop infrastructure and services that will enable science-driven exploration, space resource utilization, and human missions to Mars.”¹⁵ The Biden administration's United States Space Priorities Framework reaffirmed this approach.¹⁶

The Artemis Accords innovate in two ways: one substantive, the other procedural. Consistent with U.S. policy, they seek to establish a framework for the utilization of space resources on the moon and beyond. To do so, the Accords interpret core space law treaties and set out new space law principles. Most importantly, the Accords assume the legality of extracting space resources, asserting that extraction “does not inherently constitute national appropriation under Article II of the Outer Space Treaty[,] [which provides that “[o]uter 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”].”¹⁷ With that principle asserted, the Accords endeavor to provide secure conditions for resource extraction by introducing two new concepts: “deconfliction” and “safety zones.”¹⁸ Deconfliction refers a range of commitments designed to avoid detrimental interactions in space, including “due regard” and “harmful interference” (both found in Article IX of the Outer Space Treaty) and safety zones. Safety zones are “area[s] wherein . . . notification [of activities to others] and coordination [with any relevant actor] will be implemented to avoid harmful interference.”¹⁹ Though not prohibited by the Outer Space Treaty, the aims of these principles are in tension with the treaty's prohibition on “national appropriation,” particularly as interpreted by states who take a collectivist approach to space law.

The Accords are also an attempt to develop the law unilaterally. They were drafted and finalized by the United States, and so even though they are agreed to by the states that sign them, they reflect U.S. positions. The need for new rules to govern the Artemis program is evident. A U.S. delegate explained: “As we move towards longer-term, more complicated operations on the Moon and beyond, the United States recognizes that these operations pose new legal and policy work. In an attempt to develop a common framework for these activities amongst Artemis Program partners, we developed the Artemis Accords, a non-binding set of principles that set out how we will implement our obligations under the Outer Space Treaty as we live and work together in space.”²⁰ While the Accords stress multiple times that specific provisions are to be undertaken “in a manner that complies with,” “in accordance with,” or “consistent with” the Outer Space Treaty, three times the signatories acknowledge that they are “implementing” that treaty or its obligations.²¹ And though the signatories indicate that they merely wish to “establish a political understanding regarding mutually beneficial practices,” they also commit to “implement[] the principles contained in the[] Accords” in the arrangements and instruments they enter into between themselves as well as “through their own activities.”²² Indeed, at the first in-person meeting of the Accords’ signatories, Littlejohn promoted them “as an opportunity for countries to help set ‘rules of the road’ for space exploration. ‘The message is sign up, take your seat at the table and be a part of shaping that and thinking through that.’”²³ A NASA spokesperson affirmed to a media outlet that this was a goal of the Accords, stating that “Even if some countries cannot make near-term contributions to lunar activities directly, their support of the Artemis Accords principles will strengthen the need for common values for space exploration and utilization among the international community.”²⁴

This approach to the prescription of policy is unusual, as traditionally space law has been discussed, elaborated, and codified through the work of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Not confident that COPUOS would adopt the same principles regarding the utilization of space resources, Artemis signatories intend to develop practices first and bring them to the committee later. The Accords provide: “The Signatories 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.”²⁵ The NASA spokesperson was more direct: “By bringing as many signatories onboard as early as possible, our hope is to develop a body of knowledge, informed by collective operational experiences, that will advance broader goals through established bodies such as [COPUOS].”²⁶

The Artemis Accords have been criticized—especially by America's geopolitical rivals, China and Russia, who in March 2021 signed a memorandum of understanding on “Construction of the International Lunar Research Station.”²⁷ In 2020, Dmitry Rogozin, then director general of Roscosmos, the Russian space agency, stated that Russia would not sign the Accords as they were “too U.S.-centric.”²⁸ Indeed, Roscosmos, the Russian space agency, noted that “attempts to expropriate outer space and aggressive plans to actually take over other planets” would deter international cooperation.”²⁹ Rogozin tweeted: “The principle of invasion is the same, whether it be the moon or Iraq: A ‘coalition of the willing’ is created, and then, bypassing the U.N. and even NATO if anyone is doubtful, it's onward to the goal.”³⁰ Russia in its statement at the March 29, 2022 meeting of the legal subcommittee of COPUOS specifically criticized the Artemis Accords' treatment of outer space resources. “Of particular concern,” the Russian statement said, “are attempts by certain space actors to legalize at the national level the appropriation of extracted mineral space resources and to enshrine a special legal regime for mined areas of celestial bodies by establishing ‘security zones’ on them.”³¹ These attempts are improper because “the legal process takes place outside the conventional framework, using bilateral treaties, non-binding soft law instruments, domestic law, and reinterpretation of existing norms enshrined in the core agreements of international space law.”³² Fragmentation of international space law will result from these “[u]nilateral actions by States to interpret international space law in the area of space exploration and [the] use of space resources.”³³

Chinese sentiment toward the Accords has been similarly negative.³⁴ Song Zhongping, a Chinese military and aerospace commentator, likened the Accords to the enclosure movement in eighteenth-century Britain, during which common land was privatized for the benefit of the wealthy.³⁵ At the same March COPUOS meeting the Chinese representative stressed the importance of the Outer Space Treaty and pointed out that the treaty required that “the exploration and use of outer space should be for the benefit of all countries” and that “countries must not appropriate outer space, including the moon and other celestial bodies, for their own.”³⁶ Referring to the “current practice . . . that individual countries sign agreements to formulate rules applicable to each other on the development and utilization of space resources and related activities,” the Chinese representative said that “[i]n space resource activities, any interpretation and application of the provisions of the Outer Space Treaty, as well as the development of relevant rules, should comply with the legal framework established by the Outer Space Treaty, which addresses the rights and concerns of all States parties.”³⁷ Consequently, “it is particularly important to conduct discussions under the framework of the United Nations with genuine multilateralism.”³⁸

In June 2021, COPUOS's legal subcommittee established a working group on the legal aspects of space resource activities, and its mandate was endorsed that September by the full committee.³⁹ In March 2022, as the working group was finalizing its five-year workplan and methods of work, the United States made clear its opposition to the negotiation of an international agreement to regulate space resources. The head of the U.S. delegation explained: “Of course, the Outer Space Treaty does not provide a comprehensive international regime for space resource utilization activities. At this stage, the United States sees neither a need nor a practical basis to create such a regime. We do, however, see an urgent need to ensure that all nations engaged in space resource activities share a common set of fundamental beliefs: in the rule of law, in transparency, and in peaceful purposes. The Artemis Accords underscores these critical principles, and forms the starting point for future work on space resources.”⁴⁰