On May 15, 2020, NASA published the NASA Artemis Accords that put in place a set of principles to guide the execution of the Artemis program to send a team of astronauts to the Moon by 2024. These agreements reflect a consecration of the general principles of space law by reminding the various actors of the importance of guaranteeing some principles to create a safe and transparent environment.
Space law was created following the sending of the Earth’s first artificial satellite, Sputnik 1, into outer space in 1957 by the U.S.S.R.. This unprecedented advance instigated a movement of space race with a multiplication of research and space activities on the part of States. It was therefore necessary to provide a framework for these activities and it is the Space Treaty, an international treaty dating from October 10, 1967, which establishes the common basis for all the general concepts of space law. Other major international treaties have appeared in order to clarify some problems that space activities may generate, such as the treaty on the rescue of astronauts, the return of astronauts and the restitution of objects launched into outer space in 1968, or the treaty on international liability, which appeared on September 1, 1972, which frames the principle of the responsibility of States for damage related to space debris, the 1975 Registration Treaty, which aims to identify objects sent into space by States, and the Moon Treaty in 1979.
In April 2019, a few months before the fiftieth anniversary of the Apollo 11 mission, which saw the first man set foot on the Moon on July 21, 1969, the American Vice-President, Mike Pence, announced that American President Donald Trump wanted the first crew to be placed on the surface of the Moon in 2024. It is in this context that the Artemis program was born. This space program should lead to a sustainable exploration of the Moon through the organization of regular missions whose outcome would be the installation of a permanent station on the Moon. The program must also allow the testing and development of equipment and procedures that will be implemented during future missions with the crew on the surface of the planet Mars.
However, nowadays there are more and more actors in space. Indeed, many companies and various private actors have become indispensable to space programs, and the rise of a considerable number of international space agencies has made it necessary to establish new rules. Thus, NASA, with the collaboration of the U.S. Department of State and the National Space Council, created the NASA Artemis Accords to establish a common set of principles, largely inspired by the Space Treaty, to govern the civil exploration and use of outer space for both States and private agencies.
NASA’s choice to directly create these agreements without going through the more traditional process that would lead to the conclusion of an international treaty, is clearly strategic: indeed, the idea was to be able to quickly frame the participation of the various actors, and more particularly private companies and private agencies, in the execution of the program, in order to establish a common set of principles to govern the civil exploration and use of outer space.
Indeed, the NASA Artemis Accords aim first and foremost to “strengthen peaceful relations between nations”. Therefore, all activities must be carried out for peaceful purposes in accordance with the principles of the 1967 Outer Space Treaty.
The second main principle of the NASA Artemis Accords is the obligation for all actors to ensure transparency in their actions by “publicly describing their own policies and plans in a transparent manner”. Secondly, States must guarantee the interoperability of systems by respecting open international standards and developing new standards if necessary, in order to guarantee the safety of space operations. The following principle governing the NASA Artemis Accords is directly inspired by the 1968 treaty on the rescue of astronauts, the return of astronauts and the return of objects launched into space. NASA also sets out a principle requiring States and other partners in these NASA Artemis Accords to register all space objects that would be sent into outer space. NASA also calls on non-parties to the 1976 Registration Convention to become members of that convention in order to respect the principle of registration of space objects.
The NASA Artemis Accords provide that parties to these agreements must publish their scientific data, “to ensure that the entire world can benefit from Artemis’ voyage of exploration and discovery”. This is in line with the principle of transparency guaranteed by these agreements.
The NASA Artemis Accords provide for the protection of the sites explored, but also address the issue of space resources, already addressed in the space treaty. Thus, NASA authorizes the extraction and use of resources from the Moon, Mars and asteroids “to support safe and sustainable space exploration and development” under strict conditions set out in the Space Treaty, which the parties to the NASA Artemis Accords must respect. However, this principle could be challenged because the Space Treaty states that States cannot own space resources.
To limit interference, the NASA Artemis Accords provide for the principle of “deconfliction” of activities, i.e., the partners will have to communicate to avoid incidents and damage that could be caused by their respective activities. To mitigate this, NASA and the partners to the agreements have committed to “provide public information on the location and general nature of their operations”.
Finally, the last principle governed by the NASA Artemis Accords concerns the issue of space debris. Indeed, the NASA Artemis Accords require the parties to the agreements to act in accordance with the “Space Debris mitigation guidelines”, which is a text of the United Nations Committee on the Peaceful Use of Outer Space (CUPEEA), dating from 2007, and must anticipate the end of the life of satellites by eliminating spacecraft at the end of their missions.
Space debris is a major problem in the apprehension of interplanetary law because it endangers, on the one hand, the terrestrial population but also, on the other hand, the future protagonists of the space conquest. The NASA Artemis Accords aim to regulate the impact of man’s presence, and the pacifist spirit of these agreements also supposes a pooling of solutions allowing optimal management of space debris between countries.
Currently, about eighty-seven percent of satellites, probes, landers and other space objects launched have been registered in the United Nations Treaties and Principles on Outer Space (Convention on Registration of Objects Launched into Outer Space). This allows countries to take into consideration the impact of their missions and make them responsible both in their relations with other actors in the conquest of space and also to push for solutions to limit the damage caused to others. This space waste originates from objects at the end of their lives, or from debris that has been created as a result of collisions between active objects. One example is the accident that occurred in February 2009, when the American Iridium 33 satellite collided with the Russian Cosmos 2251 satellite, generating several thousand pieces.
The preservation of the extra-planetary environment is an important concern for NASA. Mitigation measures can take several forms: either to reduce waste or to prevent the creation of new debris through the design of satellites that have the ability to withstand the impacts of small debris.
In addition, the NASA Artemis Accords, inspired by NASA’s new objectives, seeks to develop operational procedures such as the use of orbital regimes with less debris, the adoption of specific attitudes for the manufacture and maintenance of spacecraft, and studies to better control the trajectory of debris to avoid collisions.
In 1995, NASA was the first space agency in the world to publish a set of guidelines aimed at mitigating orbital debris. Two years later, the U.S. government developed a behavioural standard for orbital debris mitigation based on the NASA guidelines. Other countries have followed suit by adopting their own guidelines, including Japan, France, Russia and the European Space Agency (ESA).
In 2002, after several years of study, the Inter-Agency Space Debris Coordination Committee (IADC), composed of the space agencies of ten countries and ESA, adopted a set of consensus guidelines to mitigate the growth of orbital debris.
In February 2007, the Scientific and Technical Subcommittee (STSC) of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) completed a multi-year work plan with the adoption of a consensus set of guidelines based on IADC Guidelines. These were accepted by COPUOS in June 2007 and approved by the UN General Assembly at the end of 2007.
Today, a good deal of scientific data has been collected and is freely available to help the scientific community and individuals to be informed of the situation. Various means are trying to be put in place to clean up space, such as the use of nets in satellites, or the use of lasers on the celestial vault. These techniques need to be improved.
We understand that this objective of the NASA Artemis Accords is in fact a step forward in the efforts already undertaken to reduce the ecological impact of extra-planetary exploration. In addition, several issues related to the Artemis agreements appear: because of the modern issue of that topic, the international legal framework is uncertain. On the one hand, the 1967 Space Treaty provides that the freedom of exploration and the freedom to use space are enshrined as “the prerogative of all mankind”. However, this freedom is framed by the treaty in order to preserve space and celestial bodies from a number of vicissitudes, such as war and territorial predation. The exploration and use of space can thus only be undertaken for peaceful purposes; which, according to the almost general interpretation of States, does not prohibit the sending of satellites for their national defense.
On the other hand, another international treaty established in 1979 that the Moon, other celestial bodies and their natural resources constitute “the common heritage of mankind” and these resources cannot therefore “become the property of States, international organizations, national organizations or natural persons”. Thus, the exploitation of the Moon by States is prohibited according to the treaty.
Any form of appropriation of celestial bodies is prohibited by the OST, while the NASA Artemis Accords establish that any extraction and use of the resources of the Moon is allowed. By the way this straight is one of its fundamental principles because it will allow for future explorers a better understanding of the space soil composition.
While the industrial and commercial exploitation of natural resources seem to necessarily rest on the appropriation of the resources of celestial bodies, is it possible and licit to proceed to the appropriation of resources without disregarding the principle of non-appropriation of the celestial bodies that contain them?
On the one hand, the United States of America considers that this activity is not contrary to the principle of non-appropriation of the Space Treaty, insofar as American nationals would not appropriate the celestial bodies themselves but only their resources, once extracted. On the other hand, a significant part of the legal experts consider that it is doubtful that the principle of non-appropriation of celestial bodies tolerates the appropriation of their resources. It seems difficult to settle this legal debate in a firm manner. The problem of the exploitation of natural resources in space did not arise at the time of the elaboration of the OST, and its lapidary provisions on non-appropriation do not allow us to grasp the current legal issues in detail.
Moreover, the viability of the Artemis program with the time frame set for it is doubtful given the modest sums allocated to the program under the 2020 budget and the lack of a budget envelope dedicated to the program for subsequent years. According to specialists, program cost estimates range from twenty to thirty billion American dollars. Therefore, seven billion American dollars per year would have to be spent to meet the target by the deadline imposed by President Trump.
However, NASA depends on its subcontractors to meet the targets. Boeing, which is developing the giant SLS launcher, has fallen considerably behind schedule, even though it is reusing existing components. In this context, can the development of the lunar lander, which will comprise three completely new modules with engines to be developed as well as several complex systems, be envisaged in such a short timeframe?
On the other hand, the chosen architecture requires the development of a new stage for the SLS launcher whose development has been halted to enable Boeing to meet its deadlines.
Thanks to the NASA Artemis Accords, the international legal community will have a good idea of what these regulations really mean in the context of lunar activities because agreements provide more precision than pre-existing treaties. In addition to the technological advancements Artemis will undertake, one of the outcomes of this program will be to refine and develop the rules of space. These rules will be defined by the mission and the operational actors in the field. They will therefore meet the needs of these actors and will be adapted to ensure the success of the programs.
In the end we can understand that the NASA Artemis Accords are a real revolution in relationships. Its pacific and common natures stand out of these texts and we can ask ourselves the following questions: can we see that agreements as a new form of peace treaty in the war in space conquest? That these agreements will initiate a new spirit of what the space conquest is? Defined it as a cooperation between States to fulfil the legal state of the space area that is an international place where every States can have a word to say… and a foot to lay.
This article was written by Marina NOVAC, Polina SHTEPA, Morgane CAUSSINUS, Jasmine BOUABOUD, Saina BURNASHEVA and Diana DA SILVA (Paris-Saclay).