One Small Step for Space Law

Humans are going back to the moon.

In late 2020, 13 countries signed on to the National Aeronautics and Space Administration’s (NASA) Artemis Accords, which establish guidelines for outer space and lunar exploration. The Artemis Accords guide NASA’s effort to land the first woman and person of color on the moon by 2024. The larger Artemis Program also anticipates the creation of a self-sustaining moon base camp that will eventually serve as the gateway to landing astronauts on Mars.

Some scholars worry that the Artemis Accords undermine current international space law. But in a recent article, legal scholar Rossana Deplano of the University of Leicester argues that even though the Artemis Accords constitute highly innovative uses of existing space law, they do not alter it. Deplano also makes suggestions for improving the Artemis Accords moving forward.

Countries currently conduct outer space operations under the framework of five U.N. treaties. Most notably, the Outer Space Treaty governs the activity of countries exploring outer space and celestial bodies. To date, 110 states have signed the Outer Space Treaty.

The Artemis Accords set forth ten principles that aim to reinforce and implement the provisions of the Outer Space Treaty. Deplano argues that some provisions of the Artemis Accords simply restate prevailing principles of space law as outlined in the Outer Space Treaty and do not create any legal controversy. For example, the Artemis Accords include the same principle, verbatim, of peaceful exploration and the requirement of compliance with international law.

Other provisions in the Artemis Accords draw from the Outer Space Treaty but insert new language. Linguistic or conceptual additions could potentially undermine the Outer Space Treaty by altering subtly the obligations of countries party to the treaty without their consent.

The Outer Space Treaty bans national appropriation of outer space, the Moon, or any other celestial bodies. The Artemis Accords recognize the ban but go further to state that the extraction of space resources does not inherently constitute a national appropriation. Deplano argues that the clarification of the term “national appropriation” does not amount to a modification of the definition of the Outer Space Treaty but recognizes that it could have influence on future interpretations.

Another novel provision of the Artemis Accords creates space safety zones. Signatories accept an obligation to report the location and nature of their space activities, creating geographical zones where other parties will then know to take caution. The Outer Space Treaty contains a duty to avoid harmful interference between countries in space but does not mention space safety zones at all. Deplano argues that the Artemis Accords’ addition of safety zones does not reinterpret the obligations of the Outer Space Treaty because the safety zone provision simply enumerates one of many ways to avoid harmful interference and does not alter the scope of the Outer Space Treaty provision.

The creation of the Artemis Accords represents a new method of space regulation through multilateral negotiation called adaptive governance, she claims. On the one hand, Deplano notes that this style of governance is efficient, flexible, and promotes collaboration between stakeholders.

On the other hand, Deplano cautions that an adaptive governance method may advantage space-faring countries over countries that are not yet in space. Countries with more advanced space programs have the opportunity to establish international rules through practice before other countries have a seat at the table. Deplano warns that if this equity gap widens too far, international cooperation could disintegrate and threaten the purpose of the Outer Space Treaty.

Deplano suggests that the Artemis Accords adopt a benefit-sharing mechanism to cure the dangers of giving space-faring countries a head start in regulating space exploration and exploitation. She recommends that countries facilitate shared space training, technologies, and expertise. Deplano also calls for a voluntary international fund that could help countries improve their space programs.

Deplano argues that the lack of a dispute resolution mechanism is a major flaw in the Artemis Accords. She recommends that parties to the Artemis Accords add a list of acceptable dispute resolution options that include both adjudicatory and non-adjudicatory solutions.

Deplano emphasizes the importance of adjusting space law to fit a changing world. Private corporations now make up a body of major players in space exploration. With advances in both the scientific and commercial sectors of space exploration, the Artemis Accords represent an attempt to address real governance challenges facing space exploration without expressly modifying existing international space law, Deplano concludes.