When I wrote about ‘Government on Mars’ about a month ago, I wondered about the Moon Agreement. Unlike its parent treaty the Outer Space Treaty of 1967 and its three sibling treaties concerning the rescue of astronauts, liability for damage caused by space objects, and the registration of objects launched into outer space, the Moon Agreement has not been signed by the US, Russia and China thus giving it a very weak position as international law goes (if I understand it correctly). I had the Moon Agreement’s Article 11 and thus its significance for private investment in space suspected of being the main problem in terms of its gaining international support.
It does indeed seem to be the key issue: According the executive director of the American Institute of Aeronautics and Astronautics Thomas Gangale’s review (Gangale 2008) of the U.S. negotiation history preceding and following the submission of the Moon Agreement for signatures in 1979, article 11 was a problem from the beginning. The articles’ apparent prohibition of commercial appropriation of space resources including the obligation to share profits with the UN member states through an ‘international regime’ led some critic to demand that the Moon Agreement be rejected or at the very least, that article 11 be omitted (ibid.: 3-4). Others warned that by singing the Moon Agreement the United States would in effect concede to “Third World control [of] the resources of our solar system” (Leigh Ratiner in Gangale 2008: 6). However, according to Gangale’s review of the negotiation history neither a prohibition of resource exploitation nor an obligation to share the profits are interpretations of article 11 that are backed up by the negotiation history (Gangale sections IV, V and VI). Yet it seem to be the predominant interpretation of article 11 (Gangale 2008; Listner 2011).
The discussions concerning the Moon Agreement date back to the late seventies and early eighties but were revived recently when on October 13 2020 NASA launched the Artemis Accords – a direct substitute for the Moon Agreement – with the following co-signatories: Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, United Kingdom, and the United States of America. The Artemis Accords are tied closely to the Artemis Project; a U.S. led international program to land ‘the first woman and the next man’ on the Moon by 2024. While the Artemis Accords takes great care in referencing and reinforcing the Outer Space Treaty and the three subordinate treaties it does not mention the Moon Agreement at all. Yet by launching the Artemis Accords they seem to effectively undermine the Moon Agreement and as far as I can tell bypass the UN?
To explore this further I download as many different analyses as I can find of the Artemis Accord and read through them. Christopher Newman, Professor of Space Law at Northumbria University reminds the reader that as a bilateral agreement, the Artemis Accords is not binding as international law would be. On the other hand, by establishing precedence in the area they are bound to get influence on following governance frameworks and this might in itself be a nuisance to the UN whose Committee on the Peaceful Uses of Outer Space have had their ongoing diplomatic discussions concerning the same topic bypassed (Newman 2020). Due to the US congressional prohibition on collaboration between NASA and China dating back to 2011 (Gough 2020), China have been barred from signing the Accords. As Chinese observers comment to the South China Morning Post: “Rivalry between China and the United States in space exploration is expected to intensify after Washington signed a legal framework for behavior in space” (Zhen 2020).
Russia on the other hand has refused to sign, finding the Accords too US centric (Newman 2020; Gough 2020). The head of the Russian space program, Rogozin, has criticized the Accords for being too political and straying too far from the principles guiding the extensive cooperation between the US and Russian on the International Space Station (Gough 2020). The problem it seems when judged by the statement made by Rogozin is perhaps less the Accords themselves than the Artemis Program they are intended to underpin and ‘govern’. There is a Russian sense, according to Rogozin, that the Artemis Program is too political and that it in effect paves the way for solidifying the US dominant position on the Moon rather than being governed to the ‘principles of cooperation and mutual support that developed during cooperation on the ISS’ (Rogozin, quoted in Gough 2020).
That interpretation seems fair enough given the US’s declared intension to strengthen U.S. leadership in space including the ‘commercialization of space’ and its push for commercial industry in accessing and exploiting space resources. While the Artemis Program and the Artemis Accords work to strengthen international cooperation it is clearly on the United States’ invitation. As the U.S. Ambassador and Luxembourg Space Agency Board Member write in their op-ed: “These Accords lay out the principles of responsible behavior by nations cooperating with the United States’ Artemis Program to land the first woman and the next man on the Moon in 2024” (Evans & Worden 2020). Countries and kindly expected to toe the line if they want to get a piece of the extensive Artemis mission.
In E-International Relations, John Hickman, Professor of Political Science at Berry College, describes the ‘international elite opinion’ as underwhelmed by the Accords (Hickman 2020). Where Newman (2020) noted the absence of Germany, France, and India who all have well-developed space programs among the signatories, Hickman points out the absence of signatures by aspiring space faring states such as Brazil, South Korea, Israel, and Saudi Arabia which the U.S. usually count among its allies, as well as the entire ‘global south’ barring the Emirates. Newman points out that the lack of signatures might reflect a wish to go through the usual diplomatic produces and await the work of the UN Committee on the Peaceful Uses of Outer Space (Newman 2020). Hickman suspects the questions of property rights are in fact the key issue.
What won the Outer Space Treaty great support both by Russia and the United States and the rest of the world in 1976, argues Hickman, was the fact that it clearly prohibited military uses of space while also prohibiting national appropriation of space territories while promising the resources of space should be a shared commons for all of humanity (Hickman 2020). This is the point the Moon Agreements article 11 follows up on what it promises that no part of any surface, subsurface or natural resource in place on the Moon (including Mars and the asteroids) can be appropriated by any State or organization (Moon Agreement, article 11, section 3). And following, that any benefit derived from the resources found on the celestial bodies shall by shared between the member states of the UN (ibid.: article 11, section 7, (d).). This in effect makes the ‘commercialization’ of space impossible and explains, according to Hickman, why the major space faring countries never signed the Moon Agreement (Hickman 2020).
The problem with the Artemis Accords then, is in Hickman’s view that it tries to recognize the “sort of property rights that investors want when making hefty and risky investments like extraterrestrial mining operations” […] “while pretending that [the assertion of these rights] by the USA is not effectively the territorial annexation or resource appropriation clearly prohibited in the 1967 Outer Space Treaty” (Hickman 2020). He points to a key part of the Artemis Accords, where it is stated that “the signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty” (Artemis Accords, section 10, subsection 2). It will seem that outer space become yet another change to enact Earthen power imbalances or distribution. Might the US get to govern on Mars? Or does the UN win in the end?