By Christopher Johnson
(Part 1 of this article was published on 27 May. You can read it here).
Developing and Expanding International Space Law
As mentioned in Part One of this article, international space law is a modest, open regime, subject to expansion and clarification. At the international multilateral level, various UN treaties on space done after the Outer Space Treaty expand on various articles of that treaty. Also at the international level, the 1998 International Space Station Agreement (ISS IGA) established the framework for rights and responsibilities for the ISS, the longest continually inhabited space station and technological achievement par excellence. At the national level – as states are responsible for national space activities and tasked with authorizing and supervising them – various national space laws have been passed which give further clarity to this obligation.
The Artemis Accords continue the development of space law through the establishment of bilateral agreements between NASA and its Artemis partners. As such, activity under these accords will serve as state practice, with precedential value, as to various new norms in international space law.
The presentation on the accords explains that interoperability of systems is critical “to ensure safe and robust space exploration. Therefore, the Artemis Accords call for partner nations to utilize open international standards, develop new standards when necessary, and strive to support interoperability to the greatest extent practical.”
The specific requirement of interoperability is not found in international space law, as states are free to explore space on their own, and without the permission of other states or of the international community. The closest corollaries to interoperability that already exist in space law are various articles requiring states to encourage and facilitate international cooperation in their scientific investigations (OST Art. 1, paragraph 3), as well as the first sentence of Art. IX dealing with the principles of cooperation and mutual assistance, and due regard.
In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.
On the other hand, perhaps interoperability is not such a legal innovation. No doubt NASA lawyers and space historians can point to similar arrangements in the various bilateral ISS agreements, as well as previous joint space missions such as the Apollo-Soyuz test project, a joint American-Russian space station. For joint activities pursuant to Artemis, the requirement of interoperability seems both necessary and common sense, and therefore interoperability between cooperating/coordinating actors seems like an emerging norm amongst spacefaring countries operating on celestial bodies.
Deconfliction of activities
The deconfliction of activities element in the Artemis Accords seems like a legal innovation, even as the particulars of how Artemis partners will deconflict is not yet known. NASA officials and presentations have mentioned “safety zones”, which would be a legal innovation from existing space law – especially for lunar activities. NASA states:
Specifically, via the Artemis Accords, NASA and partner nations will provide public information regarding the location and general nature of operations which will inform the scale and scope of ‘Safety Zones’. Notification and coordination between partner nations to respect such safety zones will prevent harmful interference, implementing Article IX of the Outer Space Treaty and reinforcing the principle of due regard.
And therefore there is a link between these safety zones and some basic principles in Art. IX of the Outer Space Treaty. Article IX establishes the principle of cooperation and mutual assistance (discussed above), and also requires states to conduct their space activities “with due regard to the corresponding interests of all other States Parties to the Treaty.”
Operationally, having due regard to others’ activities, in a cooperative manner, seems to point towards the creation of safety zones. It should also be noted that such safety zones should be merely precautionary in nature, and implemented so as to not prejudice what is occurring inside the safety zone. We have learned that the creation of lunar dust clouds, through take-off, landing, and any significant surface activity, is certain to occur, and almost impossible to truly prevent. Lunar dust in the form of tiny, glass-like particles can significantly impact machinery and human activities, totally destroy historic bootprints; and spacecraft taking off from the lunar surface can create dust clouds which travel around the entire Moon as well as eject dust permanently away from the Moon.
Additionally, safety zones should be different from “keep out zones”, where an actor is positively prohibited from entering into a given area on the pretext that doing so would injure or prejudice what is occurring within the zone. This is because Article II of the Outer Space Treaty states that the Moon is not subject to national appropriation, as well as the almost complete de-militarization of the Moon via Article IV (discussed above, under peaceful purposes). Additionally, installations on the Moon are open to visitation by other states. This positive obligation to open your installation is reflected in Article XII of the Outer Space Treaty.
All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.
Consequently, it would be contrary to the Outer Space Treaty to create blanket “keep out” zones. Rather, these Artemis safety zones will have to be articulated carefully to partners, and to the international community, in a way that stresses that Artemis activities are not asserting property rights over the boundaries of such zones. Instead, they should be explained as the physical manifestation of due regard amongst Artemis partners.
Here, due regard can mean that, on the lunar surface, coming within a safety zone without pre-coordination and taking precautions would not be showing due regard. From a space lawyers perspective, it is exciting to think that we will finally be seeing this basic principle of space law actually operationalized and put into practice. Safety zones as due regard will set a tremendous precedence for the future of space activity on the Moon, Mars, asteroids, and across the solar system into the future.
Protecting lunar heritage
The protection of lunar heritage in the Artemis Accords is building off vague and inchoate sentiments found in international law – including international space law, international heritage law, and perhaps general principles of international law. One foundation for these provisions seems to be the harmful contamination provisions in Article IX of the Outer Space Treaty.
States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth result- ing from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.
In the past, Article IX’s prohibition on harmful contamination has been the foundational obligation dealing with everything from space debris in LEO, passivation of spacecraft, moving GEO satellites into higher “graveyard”, as well as planetary protection guidelines developed by COSPAR to prevent back- and forwards-contamination of biological material. Here, it grounds the sentiment that the historical locations and artifacts of past human exploration on the Moon, whether Apollo and Ranger spacecraft from the US, or Soviet spacecraft, and likely newer Indian, Chinese, and Israeli spacecraft, are all worthy of some degree of preservation.
Lunar heritage sites may even be worthy of special rules, including safety zones around them. In 2011, NASA promulgated Lunar Heritage Guidelines which may form the content of this element when put in practice. There is also the effort by For All Moonkind, Inc., an American not-for-profit organization aimed at developing norms to protect lunar heritage sites, including with a possible convention, or recognition by UNESCO.
Orbital debris and spacecraft disposal
Finally, turning to the end of a mission, the last apparent legal innovation in the proposed Artemis Accords deals with orbital debris and spacecraft disposal. True, norms addressing space debris and the disposal of spacecraft have been developing for years in the LEO and GEO context, but their application to the Moon is novel and to be applauded. Article IX of the Outer Space Treaty requires states conducting space exploration to do so in a manner which avoids the harmful contamination of space, including the Moon, and to adopt appropriate measures for this purpose.
In the context of lunar activities, NASA states that “partner nations will agree to act in a manner that is consistent with the principles reflected in the Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space.” It’s very heartening to see NASA make explicit reference to the COPUOS Space Debris Mitigation Guidelines, especially as those guidelines are just that: guidelines, and not binding international law like the Outer Space Treaty. As such, there is no legal penalty for their violation. Developed at COPUOS over a decade ago, these guidelines were later adopted by the UN General Assembly in UNGA Resolution 62/217 in 2007 with the understanding that, while non-binding, they “reflected the existing practices as developed by a number of national and international organizations, and invited Member States to implement those guidelines through relevant national mechanisms.”
Their incorporation into national space law has indeed happened, but it is good to see them make their way to the Moon. NASA further states that it and Artemis partners will “agree to plan for the mitigation of orbital debris, including the safe, timely, and efficient passivation and disposal of spacecraft at the end of their missions.” Here, the legal innovation is the explicit mention of debris and spacecraft disposal rules for spacecraft in and around the Moon.
We haven’t seen any finalized Artemis Accords, negotiated between NASA and its space agency partners. NASA has intimated that they are working on these arrangements now. What we can say is that, based on what they have revealed to be included in these agreements, most of what they are including as prerequisites for partnership are already foundational aspects of international space law, or emerging norms based on best practices. These bilateral agreements, likely modelled after various bilateral agreements in 1998 for the ISS, will be with other ISS partner agencies. According to one news source, the Canadian Space Agency, ESA (European Space Agency), ROSCOSMOS (Russian Space Agency) and JAXA (Japanese Space Agency) will be Artemis partners. Other national space agencies will follow, along with hopefully the commercial sector, civil society, international organizations, and academia.
What is the impact for international space law, including the development of new norms for space? At first blush, Artemis appears to be one state (a leading space faring state) elaborating on various elements of space law through bilateral international legal arrangements, and therefore giving new specificity to those various elements.
Today, various existing principles of space law are quite vague as they currently stand, and subjectively interpreted, they could mean many different things. In this sense, through the Artemis program, the international legal community is going to get a good sense of what these provisions actually mean in the context of lunar activities. In addition to the technological feats that Artemis will attempt, the refinement and development of the rules for outer space will be one of the results of this program. These rules will be driven by the mission, and by the actors in the field, undertaking the activity. In that sense, they will likely be responsive to the needs of those actors, and will be tailored so as to make programs a success. It will be the international legal community to measure and weigh the impact and adequacy of these actor-drive norms – a process to take many years. The future will be a busy and interesting time for space law.
Chris Johnson is the Space Law Advisor for the Secure World Foundation, and is a Professor of Law (Adjunct) at the Georgetown University Law Center where he co-teaches the spring Space Law Seminar, and a Faculty Member at the International Space University. A member of the International Institute of Space Law (IISL), Mr. Johnson has written widely on space law and policy issues, and represents the Secure World Foundation at the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).