The Australian Space Agency was founded in July 2018 and is Australia’s national agency responsible for supporting the growth and transformation of Australia’s space industry. On 15 October 2020, Australia, along with the 7 other countries (the United States, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom) signed the Artemis Accords, making them founding partners in the US’s NASA-led Artemis programme. Since then, Brazil and Ukraine have also signed the Accords. By signing the Artemis Accords, Australia signals its space ambitions and a commitment to stronger international cooperation on civil space exploration and the use of outer space.
The Artemis programme is designed to establish a common set of principles to govern the civil exploration and use of outer space, adopting principles set out in the 1967 Outer Space Treaty and other international agreements but also provisions that go beyond them. The Artemis Accords cover a wide range of policy objectives: returning humans to the Moon, sending the first humans to Mars and the extraction and use of space resources from the Moon, Mars and near-Earth asteroids (with the aim of supporting a more sustained human presence on these bodies through the in situ utilisation of the resources). The programme is strongly driven by a need to encourage public-private partnerships and provide more legal certainty to private commercial operators. The United States, Luxembourg and the UAE have adopted national legislation governing private sector commercial mining and use of space resources.
Precious minerals on the Moon, Mars and asteroids will in future be valuable resources to address scarcity on Earth but, in the shorter term, the focus is on the use of these resources in outer space. Water in the form of ice on the Moon can be used to sustain life on human-occupied lunar bases and when split into oxygen and hydrogen, used for rocket fuel and to contribute to construction materials. Silica, the primary ingredient of glass, is in abundance on Mars and in the Moon’s crust. Near-Earth asteroids have water sources and contain precious mineral resources including nickel-iron alloys and platinum group metals, as well as minerals containing carbon.
There are certain aspects of the Accords that are uncontroversial in that they reflect the provisions of existing international space law treaties. The Accords require participants to conduct all space activities for peaceful purposes, to register space objects, and to assist astronauts in distress. They also emphasise a commitment to sharing scientific data (although private sector operations are excluded from this, unless undertaken on behalf of a State). In addition, they require that the signatories conduct their activities in a transparent fashion to avoid confusion and conflict and that they emphasise transparency and cooperation by ensuring interoperability of space capability.
However, the mining of space resources and a sustained human presence on the Moon and eventually, Mars, raise new legal considerations. Although Artemis Accord signatories affirm that the extraction and utilisation of space resources and deconfliction of activities should be conducted in compliance with existing international space law, the way in which the Accords has proposed to tackle these new areas to increase certainty and fill the gaps in the current legal framework has been met with criticism.
The Accords do not mention the 1979 Moon Agreement, an agreement which has not been widely ratified and addresses the issue of space resource utilisation. Australia is the only State that has signed the Accords and that is also a party to the 1979 Moon Agreement. Australia’s signing of the Artemis Accords may be in tension with its obligations under the Moon Agreement and it remains unclear how Australia will address its obligations under both instruments.
Whilst the principles underpinning the Accords involve a group of bilateral agreements, the international space law framework more broadly comprises a series of multilateral treaties that are a product of international negotiation and discussions. The policy shift in the Accords, being a move away from the traditional multilateral approach to a new international legal framework for space governance (based on bilateral efforts), has been seen by some as a move towards States acting in their self-interest, possibly to the detriment of other States and adversely impacting a sustainable future in outer space. The most notable opposition to the Accords has come from the prominent space-faring nations of China and Russia. Criticism is largely targeted at three sections of the Accords:
In the case of each section, the criticism may be said to arise out of the tension between communal (the heritage of mankind) type interests and those of individual States and private (possibly commercial) entities.
International space law treaties contain various provisions that establish a legal framework built on cooperation and access for all. The primary treaty, the 1967 Outer Space Treaty, sets out that the exploration and use of outer space is for the ‘benefit and in the interests of all countries’ and that it ‘shall be free for exploration and use by all States’ (Art I), that it is ’not subject to national appropriation’ (Art II), and that ‘all stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity’ (Art XII).
Likewise, the Moon Agreement provides that ‘the exploration and use of the Moon shall be the province of all mankind’ (Art 4.1), that it and its natural resources are ‘the common heritage of mankind’ (Art 11.1), and that ‘stations shall be installed in such a manner that they do not impede the free access to all areas of the Moon of personnel’ (Art 9.2).
Concern is raised in respect to each of these treaties, about how the concept of heritage sites will work in practice. The Accords establish that the signatories will preserve ‘historically significant human or robotic landing sites, artifacts, spacecraft, and other evidence of activity on celestial bodies’. What these are is of course subjective and whether the implications of such heritage sites (particularly in circumstances of prolonged and indefinite occupation) amount to appropriation and free exploration and access to others remains to be seen.
Similar concerns are raised in respect to the Accords’ provisions on safety zones, as areas around space operations that pose a risk to other space users. Safety zones are presented in the Accords as a tool to help meet the obligation to avoid harmful interference with others’ space activities (a principle enshrined in Article IX of the Outer Space Treaty)(1). Currently, the practical implementation of safety zones is unclear. If they involve the exclusion of others from areas of the Moon’s surface it may be perceived as a de facto appropriation of territory, raising questions regarding the Accords’ consistency with the broader space law framework. This is particularly so if a zone is imposed for a duration or over an area that is perceived to be greater than necessary for the related activity. These concerns have been voiced despite the US having stated that any safety zones will be established and operated in a manner consistent with the principle of non-appropriation.
Most problematic for Australia is the provision in the Moon Agreement that ‘[n]either the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person’ (Art 11.3). This is one of the key reasons that the Moon Agreement has failed to receive more than a handful of State parties and how Australia reconciles its obligation in respect to this with its involvement in the Artemis Accords is unclear.
At the same time, the Moon Agreement anticipates the commercial extraction and use of space resources. Having been concluded well before the use of space resources was a possibility, the Agreement provides that when such capabilities came about, States would approach its governance through an international regime. In this sense, it is not the extraction and use of the resources that the Moon Agreement prohibits but rather, the process of doing so in a way that is antithetical to the resources being ‘common heritage’ and this is where the argument lies: some question the ability of activities under the Accords to be for the benefit and in the interests of all countries when they provide a framework for private entities to extract and use resources. In any case, the bilateral approach of the Accords is seen to be in direct opposition with the obligation to govern the activity through an international regime and therefore, as a central conflict for Australia, as a party to the Moon Agreement.
There are also environmental concerns about mining in outer space. The Moon Agreement requires States to ‘take measures to prevent the disruption of the existing balance of its [the Moon’s] environment…’ (Art 7.1). The consistency of mining operations with this provision is open for interpretation. With the Agreement foreseeing and providing for the exploitation of the Moon’s resources, it cannot be argued that mining per se is a violation of the agreement but rather, it is the manner in which the activities are conducted that will be relevant.
Support for the Artemis Accords is found, not surprisingly, amongst pro-space exploration and resource utilisation States. The States who have signed the Accords have been described as ‘natural allies’ in this respect. Luxembourg is also considered amongst this group of pro-space resource utilisation States, having adopted national legislation governing private sector commercial mining and use of space resources, as mentioned above.
One of the central arguments supporting the approach of the Artemis Accords is that the multilateral space law framework envisages the involvement of private actors in space, a matter that is uncontroversial. For example, Article VI of the Outer Space Treaty states that State parties ‘shall bear international responsibility for national activities in outer space… whether such activities are carried on by governmental agencies or by non-governmental agencies’. Legal certainty is subsequently required for private actors to adequately assess the risk of undertaking these activities, and to adopt new rules through a multilateral treaty has so far proven to be a very slow process.
In the absence of a multilateral legal framework governing the activities under the Accords, its provisions will perhaps contribute to the development of the law or, in any case, fill the gap in the interim, before agreement on a multilateral treaty is reached. In this respect, Sec 10.4 of the Accords provides that the States ‘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’. The Accords may ultimately enhance the multilateral approach to governance in this area by providing a foundation from which to work.
At the heart of support for the Artemis Accords is the argument that its terms are consistent with the existing international space law framework. Sec 10.2 of the Accords states that resource utilisation is not a violation of the principle of non-appropriation under Art II of the Outer Space Treaty. This position is based on an interpretation of Article II being restricted to sovereign claims over the land, as opposed to the resources that form part of the land. Furthermore, the provisions on heritage sites and safety zones are, it is argued, merely in furtherance of existing international space law, in particular, that they facilitate the obligation to avoid harmful interference under Art IX of the Outer Space Treaty, and that the deconfliction of space activities provisions in general under Sec 11 of the Accords implement the UN guidelines for the long-term sustainability of outer space activities, adopted by UNCOPUOS in 2019.
It remains to be seen how the Artemis Accords are accepted globally and therefore how they advance the practical interests of the States involved. There are a number of elements to take into account in considering the future of the Accords and, directly linked to this, the future of an international legal framework for the activities it governs. For instance, if non-Accord States develop rules on the matters covered by the Artemis Accords on a multilateral basis, will they be compatible with the Accords and if not, what will the interaction be between the two sets of laws? As part of this development of the law on a multilateral level, what role will existing terrestrial mining law play in guiding the new legal framework, for example, that applying to Antarctica, or set out in the law of the sea? On the other hand, if the principles of the Accords become accepted as customary international law, they could bind non-member States, excluding persistent objectors, thereby forming part of the international space law framework.
These are important matters of international law, but their direct effect on the legal interests of individual (private) entities should also not be overlooked. If the rights of a commercial entity to prospect, extract, own, use, and of course importantly, sell, lunar or extra-terrestrial resources are not recognised and enforceable in certain (say, non-Artemis Accord State) jurisdictions, that may become a significant barrier to the expansion of industrial interests in outer space activities.
More immediately, what will the reaction of other States be in practice to the principles in the Accords? For example, will they be compliant in respecting safety zones and heritage sites set up by the States under the Accords, or will conflict arise? Of course, this requires the non-Accord States to be active in space, but space faring countries such as China and Russia, as mentioned, as well India, Israel, South Korea, France and Germany, are not parties to the Accords. At the same time, India and France are signatories to the Moon Agreement, while Germany has stated that the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) should take the Moon Agreement into account in considering a multilateral approach to the governance of space resource utilisation. Whether these States choose a cooperative or a competitive approach will be significant to the future of the effectiveness of the Artemis Accords, both in facilitating the activities of its signatory States and in directing the development of international space law in the area.
(1) Article IX includes: In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. … If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.