The Artemis Accords and a Canadian Opportunity in International Space Law

Matthew Chasmar, 2L


As a “new space race” takes place, Canada is in a position to shape the future of international space law. In October 2020, Canada was one of eight states to sign the Artemis Accords (“the Accords”)—a series of non-binding bilateral agreements drafted by the United States (US) that aim to facilitate effective and mutually beneficial cooperation in outer space activities. Signing the Accords permits states to participate in the Artemis program, the American-led effort to return astronauts to the Moon. As the American Journal of International Law observes, the Accords are far more than a simple agreement on space cooperation. Rather, they aim to create a legal framework for longer-term space activities, notably the commercial extraction of resources from the Moon and other celestial bodies. [1]

 

Legal critics have raised both substantive and procedural issues with the Accords. Substantively, space law experts have focused on potential conflicts between the Accords and international space law treaties, [2] notably the Outer Space Treaty (“OST”) and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”). Procedurally, the Accords have been criticized for being created outside multilateral fora—such as the United Nations Committee on the Peaceful Uses of Outer Space—where international space law has historically been made. [3]

 

Despite these criticisms, the Accords have the potential to further the principles of the OST and other space treaties. As a signatory to the Accords, Canada has an opportunity to shape their implementation and should encourage the Accords’ development in line with existing and evolving space law principles that preserve space for the benefit of all humankind.

 

 

The Outer Space Treaty is an important guide, but not a complete answer, to governing future space activities

 

 

The OST sets out the basic principles of international space law. However, the treaty entered into force in 1967 and is in many ways an artifact of a time when space activities were far less widespread. [4]

 

Article I of the OST states that the “exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The Article continues, stating that “[o]uter space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind.”

 

Importantly, and in accordance with the principles of Article I, Article II of the OST states that “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This prohibition against states staking claims on the Moon and elsewhere—adopted by the OST’s 114 States Parties, including all major spacefaring nations—has not yet been attenuated by any other sources of international law. To date, no state has attempted to claim a celestial body, or related resources, as its own.

As noted by space law scholar Rossana Deplano, the development of new space activities since 1967 requires more detailed and specific rules than those provided by the OST. [5] The 1979 Moon Agreement attempted to provide this detail and specificity. This treaty aimed to establish rules governing activities on the Moon and other celestial bodies, including the use of resources, and took a strongly communitarian approach. However, because the Moon Agreement was only adopted by 19 states and has never been signed by any major spacefaring state, there is room for the Artemis Accords to provide greater specificity on acceptable conduct in outer space. [6]

 

 

In filling gaps in space law, the Accords largely align with the OST, but there are contentious divergences

 

The Artemis Accords contain 13 sections that apply to the civil space activities conducted by each signatory’s civil space agency. The Accords position themselves as compliant with existing international space law. Indeed, their preamble mentions the OST as well as the three other major space law treaties. Moreover, the Accords’ sections 6 and 7 mirror provisions of the OST, while sections 5 and 12 provide examples of the practical implementation of OST provisions. [7]

 

Other provisions of the Accords have proven to be contentious, however, especially sections 9, 10 and 11. Section 9 gives states a right to establish heritage sites on the lunar surface to protect what they consider to be historically significant evidence of space exploration. Section 10 asserts a right to extract and use celestial bodies’ resources for commercial purposes, stating that [t]he 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.” Finally, section 11 outlines the use of safety zones to deconflict space activities—that is, preventing different states’ activities in space from interfering with each other. These would be temporary areas within which a state would require all relevant actors to inform each other of any activities to avoid possible interference with operations conducted by the state asserting the safety zone. [8]

 

 

Sections 9, 10 and 11 of the Accords have attracted substantive criticism

 

Sections 9, 10 and 11 are controversial for the same reason: critics fear they could undermine the OST’s prohibition on national appropriation. Most notably, section 10 assumes the legality of the extraction or utilization of space resources under the OST. [9] As argued by Rossana Deplano, section 10’s declaration that “the extraction of space resources does not inherently constitute national appropriation” represents a novel interpretation of the national appropriation provision of the OST. [10]

 

Sections 9 and 11—allowing heritage sites and safety zones respectively—enable states to exercise a limited form of control over a certain area in space or on a celestial body. Critics of the Accords have feared that the use of safety zones could enable the indirect appropriation of the area covered by the safety zone. [11] Similarly, as noted by Balázs Bartóki-Gönczy & Boldizsár Nagy, there is a concern that the section 9 heritage provisions could allow states to gain indefinite control over areas under the guise of heritage protection, further eroding the principle against national appropriation. [12]

 

 

Beyond representing a possible departure from OST principles, the Accords deviate procedurally from how space law has traditionally been made

 

Traditionally, space law—including the OST and the other major space law treaties—has been developed through the United Nations Committee on the Peaceful Uses of Outer Space (“COPUOS”). The Accords, being a series of US-led bilateral agreements, entirely bypass this process. This has led some to criticize the Accords as an attempt to unilaterally assert an interpretation of space law that is friendly to US commercial interests. As characterized by the American Journal of International Law, “[n]ot confident that COPUOS would adopt the same principles regarding the utilization of space resources, Artemis signatories intend to develop practices first and bring them to the committee later.” [13]

 

It is important to note that the Moon Agreement was a multilateral attempt through COPUOS to give detail to the principles of the OST, especially regarding resource extraction. Mention of the Moon Agreement is notably absent from the Accords’ preamble, and indeed the Accords deviate from the Moon Agreement’s vision for space resource utilization in many ways. Perhaps tellingly, only three States Parties to the Moon Agreement—Saudi Arabia, Australia and Mexico—have also gone on to sign the Accords, with Saudi Arabia subsequently choosing to withdraw from the Agreement.

 

Despite this criticism, the benefits to Canada—and other nations—as an Artemis signatory are clear

 

In terms of policy, the benefits of Canada’s participation in the Accords are obvious. Canada’s participation in the Artemis Program has greatly advanced the Canadian space program. Notably, Canadian astronaut Jeremy Hansen is set to become the first Canadian (and first non-American) to visit the Moon as part of the Artemis II mission scheduled for next year. Participation in the Accords also allows Canada to play a role in shaping guidelines for future space activities, such as space mining. Indeed, the Canadian Minerals and Metals Plan has identified space as a possible growth area for the Canadian mining industry—a fact that has not gone unnoticed by the Accords’ Canadian backers.

 

Support for the Accords has also increased among spacefaring nations. At the time of writing, 32 states have signed the Accords, with the most recent being Belgium in January 2024. Existing signatories include the major spacefaring states of France, Japan and India. With greater acceptance of the Accords, the benefits of participation to Canada only become more significant.

 

 

Canada has a clear role as an Artemis partner in shaping the balance between OST principles and commercial interests

 

Beyond its policy benefits, Canada’s participation in the Accords also holds legal importance. Indeed, the Accords may come to represent a significant example of subsequent practice for the purposes of interpreting the OST. [14] According to the International Law Commission, subsequent practice is “conduct in the application of a treaty, after its conclusion, which establishes the agreement of the parties regarding the interpretation of the treaty.” As the Accords seek to operationalize the principles of the OST, they could represent an important development in subsequent practice. [15]

 

A framework for future resource extraction or commercial activities is necessary for international space law to keep pace with advancing technology. More specific space law rules will provide Canada and other states with an important opportunity to advance their commercial interests. However, an approach that is too favourable to commercial interests and the most powerful spacefaring states, or one that allows for de facto national appropriation, risks undermining the principles established in the OST that space should be “the province of all mankind” and that the exploration of space and use of space resources should be to the benefit of all humanity.

 

Importantly, Canada’s participation in the accords should not result in a wholesale endorsement of the US’ commercially focused approach to space law. Notably, the US, in its attempts to promote the commercial exploitation of space resources, has taken the position that space is not a global commons. While the OST does not use the language of a global commons, by ensuring free access and prohibiting national appropriation, it nonetheless characterizes outer space in a way that has led to space being described as a global commons. [16] Thus, an approach to space law that is contrary to the idea of space as a commons risks undermining Article I of the OST.

 

As a member of the Accords, Canada occupies a stronger diplomatic position to ensure the Accords develop in a way that minimizes tension with the OST. As part of these efforts, Canada should encourage the US to solicit the participation of additional states in the Accords, especially developing states that have traditionally been underrepresented in space exploration efforts. This would increase the diversity of state voices represented in the Accords and help to ensure that future exploration and resource use under the Accords is done—as the OST states—“for the benefit of all peoples irrespective of the degree of their economic or scientific development[.]”

 

As stated above, the Accords bring a range of benefits to Canadian space policy. However, Canada is also a party to the OST—a treaty with important principles that Canada has thus far stood behind. As the Accords develop, and the activities which they seek to govern become more of a practical reality, their evolution will undoubtedly be a subject of conversation between signatories old and new. Canada should seek to advance the interests of its space program and space industry through this dialogue. Yet it must also ensure that the established principles of international space law are upheld in the process.

 

[1] “Signatories of the U.S.-Led Artemis Accords Meet in Person for the First Time” (2023) 117:1 Am J Intl L 133 at 134 [Signatories].

[2] Fabio Tronchetti & Hao Liu, “Australia's Signing of the Artemis Accords: A Positive Development or a Controversial Choice?” (2021) 75:3 Australian J Intl Affairs 243 at 244 [Tronchetti & Liu].

[3] Signatories, supra note 1 at 137.

[4]  Rossana Deplano, “The Artemis Accords: Evolution or Revolution in International Space Law?” (2021) 70:3 Inti & CLQ 799 at 804 [Deplano].

[5] Ibid at 804.

[6] Ibid at 813.

[7] Tronchetti & Liu, supra note 2 at 244.

[8] Deplano,  supra note 4 at 808.

[9] Signatories, supra note 1 at 136.

[10] Deplano, supra note 4 at 804.

[11] Tronchetti & Liu, supra note 2 at 248.

[12] Balázs Bartóki-Gönczy & Boldizsár Nagy, “Introductory Note to The Artemis Accords” (2023) 62:5 ILM 888 at 890.

[13] Signatories, supra note 1 at 137.

[14] Deplano, supra note 4 at 804.

[15] Ibid.

[16] John S Goehring, “Why Isn’t Outer Space a Global Commons?” (2021) 11:3 J National Security L & Pol'y 573 at 577.