US Sets a New Direction in Space Policy and Space Law

US Sets a New Direction in Space Policy and Space Law

US Sets a New Direction in Space Policy and Space Law

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By Dr. Ilan Fuchs
Faculty Member, Legal Studies, American Military University

Things are changing in the world and also in space. On October 13, 2020, the Artemis Accords were signed virtually by seven directors of national space agencies led by NASA. This is not just another international agreement; it is a new path the U.S is carving in the international arena.

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According to NASA, “The Artemis Accords establish a practical set of principles to guide space exploration cooperation among nations participating in the agency’s 21st-century lunar exploration plans.”

The Artemis Accords are not a treaty, they are a multilateral agreement among the U.S., Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, and the United Kingdom. They do not bind states that are not parties to the accords, but they make some significant statements with overarching effects.

First, it is obvious who is not part of the accords, Russia and China. The reason is clear: The Artemis Accords are a ticket to a prestigious club.

The Artemis Accords Are the First Step to Modernize Space Law

In a video released with comments by all the directors of the signatory space agencies, Bridenstine explained that existing space treaties are old and outdated and the Artemis Accords are the first step to modernize space law. The Accords will abide by those treaties but will implement the principles in a way that accept the evolution of space exploration since the 1970s.

A major example of this new reality is Section 10 Article 2 of the Accords that deals with use of space resources. It reads: “The Signatories emphasize that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.”

So what do we have here? The 1966 Outer Space Treaty made it clear that the moon and other planets cannot be claimed by any state. In the context of the space race and the Cold War the logic was clear. The Artemis Accords accept the principal but are quick to note that the signatories see the use of space resources on the horizon. While such utilization of resources will comply with the outer space treaty, “it does not inherently constitute national appropriation.”

Not inherently? So when can it constitute national appropriation? What does that mean? This ambiguity sends a strong message to Russia and China: There are new rules and you better join. In remarks prepared for the signing of the accords, Keith Kratch, the U.S. undersecretary of state for economic growth, energy and environment, stated: “Not every nation supports those ideals of freedom and private enterprise, so those who do must stick together.”

The interest in the utilization of space resources is clear when looking at the policy behind the accords: NASA is promoting more cooperation among national space agencies and commercial space innovators. The idea is that private corporations should make bigger moves into space.

This goal was articulated by President Trump in Executive Order 13914 of April 6, 2020. The order provides that “commercial partners will participate in an ‘innovative and sustainable program’ headed by the United States to ‘lead the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations.’ “Successful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.”

If you want to bring commercial players into this game they need to make money. The executive order makes it clear that existing interpretations of the Outer Space Treaty and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the so-called “Moon Agreement”) which establish the legal framework for nation-states concerning the recovery and use of space resources have deepened, particularly because the United States has neither signed nor ratified the Moon Agreement.

In fact, only 18 countries have ratified the Moon Agreement, including just 17 of the 95 member states of the UN Committee on the Peaceful Uses of Outer Space. Moreover, differences between the 1979 Moon Agreement and the 1967 Outer Space Treaty — which the United States and 108 other countries have joined — also contribute to the uncertainty regarding the right to recover and use space resources.

And if someone did not understand these very clear statements, the White House made sure we would not miss this: The executive order states that “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law. Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.”

If anyone thought this is mere bravado, the Artemis Accords show this is as real as it gets. The U.S is beginning a new space race. It can run alone or with others, but it is running and this time the rules are different.

About the Author

Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B. in Law and a Ph.D. in Law from Bar-Ilan University. He has published a book and 17 articles to date in leading scholarly journals. At AMU, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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