Do NASA's lunar exploration rules violate space law?

When they were first publicized by NASA earlier this year, NASA’s Artemis Accords seemed harmless and trivial, almost self-evident. These tenets state, among other things, that emergency assistance will be rendered to foreign astronauts if they are endangered or in distress, that planning for space travel will take place transparently and that research findings will be published in a timely fashion—with these steps taken, of course, for the benefit of all humankind.

The Artemis Accords are NASA’s rules to which all international partners must adhere if they wish to participate in the space agency’s Artemis program, which seeks to send new crews to Earth’s moon—and eventually beyond. In addition to the US, seven nations have already signed on.

According to NASA, those who do not agree to the accords cannot participate. In any case, signatures are merely a formality. At least, that is the way the agency’s administrator Jim Bridenstine sees it. “Any responsible space-faring nation should be able to abide by these principles,” he averred in mid-October at the International Astronautical Congress (IAC), an annual meeting that was held virtually this year.

One Accord to Rule Them All?

Anyone who examines the Artemis Accords carefully might come away with a different impression. Its 13 sections seem to show that the rules are about the use and exploitation of the moon in order to maintain American dominance, possibly undermining international law.

“The Artemis Accords are an attempt by the Americans to walk softly to legitimize their deviation from the Outer Space Treaty,” says Stephan Hobe, director of the Institute of Air Law, Space Law and Cyber Law at the University of Cologne in Germany. That treaty—which has been ratified by 110 countries via the United Nations and entered into force in 1967—has up to now provided the legal basis for the exploration and utilization of space. Among other requirements, it that member states must have “free access to all areas of celestial bodies.” In addition, “the moon and other celestial bodies [are] not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

The Artemis Accords document seems to take a different approach, as evinced in Section 11, which is by far the lengthiest section. Under the innocuous-sounding title “Deconfliction of Space Activities,” it states that the countries subject to the agreements will support the development of safety zones, for example around a moon base or where mining activities occur. This is meant to ensure that states do not come into conflict with one another.

At the IAC, Bridenstine maintained “that we can, in fact, extract and utilize space resources. Countries and companies should be able to enjoy the fruits of their labor.” But this is where the problems begin. “Safety zones are specific areas,” Hobe says, “and it is precisely the acquisition of such areas that is, in fact, banned by the Outer Space Treaty.” Speaking at the IAC, Frans von der Dunk, a professor of space law at the University of Nebraska–Lincoln, made it clear that although states may plant their flag on the moon, per the Outer Space Treaty, they may not annex regions nor reserve them for future settlement.

A Space Law Loophole

So are the accords a clear violation of international law? Not necessarily. Their stated purpose “is to establish a common vision via a practical set of principles, guidelines, and best practices.” That is, they do not claim to form the basis for new law and thus, strictly speaking, cannot violate existing international law. “We already have internationally binding law,” Hobe says. “But there are a few countries that are not satisfied with the interpretation of this law. So they create guidelines with the hope that eventually they will develop into customary law that will weaken the existing space law. That’s a really clever maneuver.”

Von der Dunk also views the Artemis Accords as more of a political problem than a legal one. The agreements’ sizable list of signatory nations, he says, is meant to signal a broad international consensus that the US is correct in its interpretation of the Outer Space Treaty with regard to the exploitation of the moon.

But Hobe, an expert in international law, notes that such consensus may be illusory, based on the way in which the agreements were developed. There was no international committee and no broad discussion. Instead the Artemis Accords were simply dictated by the US “The Americans always want to lay down the rules of the game. Only then may many other countries be asked to cooperate,” Hobe says. “And it is very important to them to quickly create facts on the ground.” It is the old game of strength in numbers: the more states that are a signatory to an agreement, the harder it is to turn back the wheel. “We are of the opinion that all of the countries that participate are complicit in hollowing out the Outer Space Treaty,” he adds.

Although some European spacefaring nations have already agreed to the accords, several crucial holdouts remain—Germany among them. That nation’s position on the accords is important, in part, because it is already an indirect participant in Artemis: The US moon capsule Orion will be powered by a European service module largely built in Germany. Queried about the status of the latter country’s involvement with the accords, a spokesperson for Germany’s Federal Ministry for Economic Affairs and Energy wrote, in carefully chosen words, that it was in “close discussions” with the Americans and that legal questions would “play a role at the appropriate time.” The spokesperson added that “fundamentally, the [German] government is interested in the further elaboration of the legal framework of existing international law at a multilateral level.”

Russia’s Rejection and China’s Chilly Reception

Russia is clearer on the matter. Dmitry Rogozin, head of Russian spaceflight efforts, stated at the IAC tthat a key part of the Artemis program is “too US-centric.” As a result, his country does not intend to fully participate in the American moon plans. As early as July, Rogozin, who is known for his bluster, complained about Artemis in the Russian tabloid Komsomolskaya Pravda. “ “For the United States, this is now more of a political project.... There is America; everyone else must help and pay,” he told the newspaper. “To be honest, we are not interested in participating in such a project.”

At the IAC, Rogozin said that Russia intended to fly to the moon on its own, not with the US There, the country will establish a research base with China, another nation skeptical of the US’s lunar intentions. A spokesperson for China’s Ministry of Foreign Affairs noted that the rules of behavior for space should be established by U.N. committees, not a single country. China, however, would not be eligible to participate in Artemis in any case because of a long-standing prohibition from the US Congress greatly restricting NASA’s cooperation with the nation in space.

Europe, by contrast, remains an attractive partner for the US’s moon plans, as evidenced late last month when the European Space Agency (ESA) finalized an agreement with NASA to collaborate on the future lunar Gateway space station, including contributing two modules. As envisioned by NASA, the Gateway will supposedly serve as the lunar-orbit-based successor to the International Space Station (ISS). The modules will probably be ready only by the end of the 2020s, however—long after the Trump administration’s aspirational announced moon-landing deadline of 2024.

To date, only three European countries are involved in the Gateway—and their participation is indirect. It is no coincidence that these same three countries—Luxembourg, Italy and the U.K.—are signatories to the Artemis Accords. Luxembourg is a nation that has long advocated lunar mining of resources. And it has even awarded licenses—in contravention of international law, Hobe points out. Then there is Italy, which, apart from its ESA membership, has continually entered into one-sided agreements with NASA for the inclusion of Italian astronauts on US spaceflights. The U.K.’s role has been less consistent. In 2012 the nation saved Europe’s participation in the ISS with a one-time injection of funds. NASA subsequently selected British astronaut Tim Peake to fly to the ISS on a half-year mission in 2015.

Since then, however, neither Peake nor any other U.K. astronaut has returned to the ISS. Do the Artemis Accords offer a second chance for the nation’s hopeful spacefarers? While far removed from issues of international law and space agreements, this is where the practical problems begin to make themselves felt. What, exactly, does it mean when the US states that only those who have signed the accords will be permitted to participate in Artemis? Does this relate to the mining of resources, the construction of moon bases or even the selection of astronauts? “That’s an interesting question, but it hasn’t come up yet in our discussions with NASA,” ESA director general Johann-Dietrich Wörner told Spektrum der Wissenschaft.

Fly Germany to the Moon?

Because of its role in making Orion’s main engine, Germany is clearly a vital partner in NASA’s Artemis program. But the situation is roughly comparable to that of an engine manufacturer for Formula One racing: the driver and support crew get all the glory rather than the immensely important motor that lets them compete in the first place. And whether in such racing or human spaceflight, rarely, if ever, does an engine manufacturer get to choose who sits in the cockpit. That, however, is precisely the promise that Germany’s economics minister Peter Altmaier has made to German astronaut Alexander Gerst. “If there is any way we can get it done, we’ll shoot you to the moon,” Altmaier told Gerst.

Matthias Maurer, another German astronaut, is also hoping for a moon flight. But could such a mission take place without Germany signing on to the Artemis Accords? In a tersely worded response to an inquiry from Spektrum der Wissenschaft, a representative of that nation’s economics ministry stated that the ministry was working on “concrete astronautical participation in Artemis.” But for this to happen, a unified European position has to be agreed on first.

Because Italy, Luxembourg and the U.K. pressed ahead on their own, such a pan-European agreement looks less likely, however. And it is not likely that ESA will be of any great help. “That is a matter for governments,” Wörner says. “Only countries can sign the Artemis Accords, and the ESA is not a country.”

For the Germans, ESA’s and NASA’s intermingled moon plans may provide late satisfaction. For the past five years, Wörner has been advocating for a “Moon Village,” a lunar outpost that all spacefaring countries would contribute to and utilize. But as he makes clear, it would be a village without a mayor. Under the Artemis Accords, would such an outpost instead have the US as a sheriff—some entity to regulate claims and ensure law and order? Wörner has a diplomatic response. “In the final analysis, the Artemis Accords only state that certain limits must be maintained—limits that I, too, would have to accept,” he says. It is critically important that the moon does not belong to the Americans alone. But as Wörner concedes, NASA is proceeding skillfully “in that it gets itself a couple of partners and hopes that others will be drawn in.”

Bridenstine, Wörner’s counterpart at NASA, views matters similarly, but he is more reserved in his “While a good number of countries [have] signed the Artemis Accords..., there is room for more,” he said at the IAC. Even though it was not intended as such, that statement sounded a little like a threat.

This article originally appeared in Spektrum der Wissenschaft and was reproduced with permission.