Canada and Artemis Accords drive Soviet-era space rules into the 21st century

Finally, after 50 years of relying on broad, Cold War-era rules, Canada and other nations are taking serious steps to establish a modern framework to govern activities in space. Earlier this year, NASA announced the development of the “Artemis Accords," a set of operational principles to guide the American-led initiative to return humanity to the Moon, seeking input and involvement from other countries. The multilateral effort is far from achieving international consensus with Russia expressing American-centric concerns and China preferring a UN brokered approach. Ill-founded criticisms have also re-emerged alleging that the U.S. is acting contrary to the 1979 Moon Treaty—a defunct agreement of no force except on the few countries who have signed it (which does not include any major space-faring nation), and that the Artemis Accords are a subversive American attempt to facilitate annexation of territory in space. These concerns are unwarranted. Our southern cousins are not trying to pull off a “land grab." The simple fact is that space-faring nations have outgrown the international rules set out in the 1967 Outer Space Treaty (OST). Created at the height of the Cold War, these rules were more focused on preventing nuclear proliferation in outer space than facilitating civil and commercial exploration and development. The OST’s high-level and broadly worded rules worked well when space was the exclusive domain of major national space agencies and their allies. The landscape has shifted dramatically: from 15 in 1990, there are now well over 60 space-faring nations. Unsurprisingly, the space sector’s annual growth has, even by conservative estimates of six per cent, doubled the global average and, per Morgan Stanley’s assessment, is on track to nearly triple from US$350-billion currently to $1-trillion by 2040. The world remains held back by outdated rules that leave private investors uneasy and render it difficult to hold states accountable for polluting (e.g., satellite and rocket debris). Image courtesy of Needpix.com Yet, despite these successes, the world remains held back by outdated rules that leave private investors uneasy and render it difficult to hold states accountable for polluting (e.g., satellite and rocket debris). The lack of clarity around what exactly constitutes “national appropriation” of territory, which the OST prohibits, also creates discomfort every time a major power like the U.S., Russia, or China announce plans to establish a lunar base. The silver lining to states trying their best to coordinate and keep transparent all this new activity is that their experiences and lessons learned have been consolidating into clear, tangible areas where practice can be translated into new norms and voluntary frameworks. The Artemis Accords are the resulting proactive effort to begin formalizing these practices and create momentum towards a modernized international understanding. NASA unveiled the accords on Oct. 13, with Canada, Australia, Italy, Japan, Luxembourg, and the United Arab Emirates as initial signatories. Ukraine joined earlier this month and NASA has noted ongoing discussions with additional nations that may join. Notable absences so far include France, Germany, and New Zealand. Russia’s skepticism is more rooted in saving face than substantive opposition to the accords’ principles and China’s ever tactful refusal is a trap for Western space powers. The accords feature 10 non-legally binding principles that are expressly stated to be implemented in compliance with the OST. They are intended to be “guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program." Peaceful exploration Transparency Interoperability Emergency assistance Registration of space objects Release of scientific data Preserving heritage Space resources Deconfliction of activities Orbital debris Not only has Russia not meaningfully contested any of these principles, it has openly affirmed the importance of interoperability and clearly left the door open to joining the accords by signalling its price of participation as collective decision-making, akin to the International Space Station (ISS) model. Outer space has again become a platform for superpower posturing and prestige. The ISS is a genuinely collaborative effort between the U.S., Russia, and the Europeans. The Artemis program, by contrast, is an unequivocally American venture, and the accords are technically executed through bilateral agreements with the U.S. We can expect Russia to remain on the periphery to safeguard its international standing, at least until its own lunar ambitions mature and there is an opening to formally consolidate norms into a larger multilateral framework. China’s opposition was predictable as, due to its continued disregard for intellectual property rights, it remains prohibited from scientific collaboration with the U.S., a prohibition that also extends against collaborating with other nations, if those nations wish to continue partnering with the U.S. Accordingly, China remains banned from the ISS for good reason. The Middle Kingdom’s gesture towards multilateralism through the UN is an attempt to trap the U.S. and its allies in an increasingly contested forum. The trillions invested through China’s Silk Road Initiative and Asian Infrastructure Investment Bank are not only securing critical trade junctures and assets across Asia, Africa, Eastern Europe, and Latin America, but are also exerting indirect pressure within the UN General Assembly. The accords do not expand the scope of the OST, but rather provide more technical guidelines to its existing parameters. With the utmost respect, negotiating technical guidelines, rooted in first-hand experience, with non-space faring nations may not be an appropriate or practical endeavour—especially with China in the wings. The accords’ bottom-up approach toward modernizing the international framework is not new. The U.S. and United Kingdom employed the same strategy to first bilaterally establish civil aviation standards and rules between themselves before other nations joined as they too developed aviation capacity. As I previously proposed in Princeton’s International Relations and Affairs Review, a limited multilateral approach like the Artemis Accords that initially consists of like-minded partners can meaningfully consolidate best practices to-date. Just as importantly, it can orient subsequent negotiations away from unproductive concerns such as those based in the 1979 Moon Treaty. Much of the accords are uncontroversial and welcome. Developing technical standards, particularly concerning fuel, docking, communications and life support will better ensure continued momentum and collaboration. Commitments to implement orbital debris mitigation efforts and clearer rules assigning liability will further contribute to efforts to reduce the build-up of space junk that is endangering all nations’ access to space as well as the critical Sat-Com infrastructure we all rely upon. Transparency and information-sharing commitments will help preserve space as a primarily peaceful, scientific, and commercial domain. These commitments will all further serve to proliferate successful technologies and reduce the entry costs to other nations with space ambitions of their own. Two of the accords’ principles have created controversy. However, much of this consternation is dispelled by a better understanding of international space law, and international law, in general. These are the principles concerning “deconfliction of space activities” and “space resources." The deconfliction principle sets guidelines for states to temporarily declare and regulate reasonable “safety zones” around their space operations that other signatories will respect so as to prevent “harmful interference." Critics are concerned that this amounts to appropriation of territory in space and point to the OST’s prohibition. Whether safety zones constitute appropriation requires a contextual analysis. Under the OST, states can neither directly or indirectly (e.g., through private companies) appropriate territory anywhere in outer space—whether a particular satellite orbit or area on a planet, moon, or asteroid. This is further reinforced by the binding principles of international law that require states to fulfill their obligations in good faith. For example, suppose country A claims a large safety zone on the Moon and begins ice extraction in earnest (ice can provide vital hydrogen for fuel as well as water and/or oxygen for life support). Country B claims a cluster of safety zones and sets up similar mining operations but only runs them at half capacity. Country C claims a large safety zone for research but its experiments actually only need a fraction of the area claimed for safety purposes. The activities of both countries B and C would amount to de facto appropriation of territory and be inconsistent with good faith adherence to their international obligations. These countries would need to cease their activities or face international censure, legal or otherwise. The principle of safeguarding against harmful interference already exists in the maritime and aviation domains, which is the analog much of space law derives from. The OST incorporated these safeguards through its Article IX which obligates states to act with “due regard” to the interests of other states. Similarly, the accords’ clear position that appropriating space resources on the Moon, or elsewhere, as consistent with the OST is also compliant with international law and in fact rooted in analogous practices. Although the OST prohibits direct or indirect appropriation of territory, the appropriation of resources from a territory does not constitute any sort of sovereign claim to the territory itself. To illustrate, if a Canadian company took fish or oil from the ocean or seabed, no country would take this as Canada staking a claim in the column of water or seabed from where these resources derived. In stark contrast is the framework, contemplated by the Moon Treaty, which designates all of outer space, including resources, as the “common heritage of mankind” and requires the establishment of some kind of international authority to distribute the profits resulting from these resources. Only a handful of states are party to this agreement, none of which are major space-faring nations. Put another way, introduced by the UN in 1979, it was too socialist for even the Soviet Union to support. The UN Committee on the Peaceful Uses of Outer Space (COPUOS) has yet to declare support for these controversial aspects and the U.S. remains a persistent and vocal objector. Australia’s participation is curious as it has ratified the Moon Treaty. However, it seems to be qualifying its support holding that it does not believe it prohibits appropriation of resources so much as it concerns a different management regime. The U.S., as well as Luxembourg, have openly recognized private property rights in space resources and have taken steps to establish regulatory frameworks to give the private sector confidence. As more space-faring nations join the accords, admittedly in large part to secure lucrative partnerships with the Lunar Gateway and other Artemis projects, we can expect these principles to further coalesce into clearer guidelines and frameworks that will eventually be brought to COPUOS to proliferate internationally. Last year, I proposed that the immediate need for modernizing international space rules was a significant and timely opportunity for the federal government to act upon its “Canada is Back” rhetoric and facilitate rapprochement between the U.S., Russia, Europe, and China, while also bringing many other actors to the table. Russia, China, and other nations desire clearer rules, but are ever wary of American strong-arming, perceived or otherwise. Canada, on this and many other issues, remains uniquely positioned to diffuse what may seem like American unilateralism. Although the U.S. has seized the initiative and put its cards on the table, Canada may still play an important role in bringing more like-minded nations into the Artemis Accords and working behind the scenes to streamline the path for their international proliferation. Facilitating such a feat would not only garner respect from allies and rivals alike, but also earn well needed leverage with the U.S., who, since the 2007 recession, has been increasingly taking positions against Canada’s energy, environmental, trade, and Arctic interests. Andrej Litvinjenko is the former vice-president of policy for the Canadian Space Commerce Association and adviser to the former chair of the Parliamentary Aerospace and Space Caucuses. He is a lawyer with Litvinjenko Law, a senior adviser to the Canada Infrastructure Bank, and a member of the board of governors at the University of Ottawa. The Hill Times