Artemis Accords – Considerations for Canada

Lunar Exploration Accelerator Program (LEAP). Credit: Canadian Space Agency.

In part 1 of this series, we considered the Executive Order issued by the U.S. President on “Encouraging International Support for the Recovery and Use of Space Resources”, dated 6 April 2020, and what this might imply for Canada if it signed onto supporting the order.

In part 2, we will discuss the same issues with respect to the Artemis Accords*.

The publicly available overview document relating to the Artemis Accords, released on 15 May 2020, has many positive elements with respect to the set of principles that the United States is proposing be used to govern the civil exploration and use of outer space.

Commonly accepted best practices and rules of the road will be required for a safe and sustainable future development of outer space activities.

Furthermore, the emphasis within the brief overview document relating to peaceful purposes, transparency, interoperability, and registration; the underlining of the importance of scientific data; identification that international partnerships will be essential as we move forward; that any agreements must be grounded in the Outer Space Treaty; that the private sector will be an important component of future space exploration activities; the importance of protecting cultural heritage; the identification of harmful interference as being a potential future area of conflict; and the potential serious issue of debris are all constructive and encouraging elements that will need serious negotiations in order to develop a global consensus on the creation of “a safe and transparent environment which facilitates exploration, science and commercial activities for the benefit of humanity”.

COPUOS needs to more actively engage with and listen to leaders in both the private and academic space sectors where most new developments are taking place.

David kendall

As the former chair of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS), I applaud the U.S. for developing this list of principles as it will hopefully stimulate some much needed focus within the Committee and, through informed discussion, move the debate forward from the Accords’ emphasis on a series of U.S.-led bilateral discussions to a global dialogue on rules or guidelines that states will need to follow as humanity collectively starts to explore the cosmos.

During my final statement as chair of the Committee in June 2018, I identified three important issues that I hoped the Committee would try and urgently address in the near future.

The first was the need to find a way to ensure that both the Legal and Scientific and Technical Subcommittees share equally in the development of cross-cutting issues. This is essential if the Committee is to effectively start to address the governance of space exploration since all of the principles noted in the Artemis Accords’ overview deal with scientific, technical, policy and legal aspects implying the need for close coordination between scientists, engineers, lawyers and policy makers as global rules/best practices are developed.

Secondly, the Committee needs to actively find ways to quicken its pace of deliberations and decisions and become more efficient; the current speed in the advancement of global space activities, especially those relating to space exploration, lacks synchronization with COPUOS that usually takes many years to provide direction in important areas that need its wisdom and global reach.

And lastly, COPUOS needs to more actively engage with and listen to leaders in both the private and academic space sectors where most new developments are taking place; best practices cannot be developed without the essential voice of the commercial players since the efficacious development of space exploration relies on this sector being successful.

In reference to the above, it is disappointing that the Artemis Accords’ overview does not mention COPUOS given that it is the only effective global body dealing with governance issues relating to the peaceful uses of outer space.

An artist’s concept of Canada’s smart robotic system
An artist’s concept of Canada’s smart robotic system located on the exterior of the Gateway, a small space station in orbit around the Moon. Credits: Canadian Space Agency, NASA.

This is somewhat surprising in that the U.S. delegation to COPUOS was among the most conscientious, constructive and effective of the actively engaged states that discussed, negotiated, argued, cajoled and ultimately compromised in order to produce a comprehensive set of guidelines in 2018 through the outstanding work of the COPUOS Working Group on the Long-Term Sustainability of Outer Space Activities (LTS).

The 21 sustainability guidelines produced by the working group and approved unanimously by the 92 member states of the Committee, provide best and improved practices covering aspects such as registration; sharing information and monitoring information; and sharing information and developing models in relation to space weather, all important issues that need to be addressed in any future national or multinational space exploration framework.

Given this, it is also unfortunate that the LTS guidelines are not referenced in the current Artemis Accords’ overview. A possible reason for the omission of any reference to COPUOS in the overview document may relate to the fact that the LTS working group took 9 years of intense and often vexing discourse to achieve consensus within the Committee. Thus, it perhaps can be presumed that the U.S. is seeking a less arduous process relating to developing multinational guidelines associated with future human space exploration initiatives beyond low-earth orbit by working with a smaller set of potentially aligned states. In this I believe that the United States is mistaken in that the harder and more frustrating road would produce a significantly more solid result that would be less open for dispute.

As a specific case in point relating to the potential for future disagreements between states over separate sets of principles, only two nations currently have the ability, wherewithal and budget to send humans to and return them from the surface of the moon in the next decade – the United States and China. If the U.S. continues to develop and expand its own set of principles without China, it is likely that China will produce a parallel set of accords that will presumably differ in both substance and style. And will Russia stay neutral in this debate?

Although not well known or appreciated in Canada, it should be noted that the Canadian COPUOS delegation played a very important role in the LTS negotiations, often using its diplomatic skills and reputation to find compromises between different positions held by the major space nations on particularly tricky and contentious issues. I am of the opinion that if Canada was to take a leadership role in multilateral negotiations on this topic of space exploration governance, a significantly stronger agreement could be secured that would be ratified by all major space-faring states as opposed to the limited and potentially divisive approach proposed by the U.S.

As a further comment relating to COPUOS, since 2017, the Legal Subcommittee (LSC) has included on its agenda the topic of “General exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources”.

In 2019, the subcommittee discussed the formation of a specific working group on this topic, however, the necessary consensus was not achieved. Subsequently, the main Committee that year endorsed the nomination of two prominent space lawyers, Andrzej Misztal as Moderator and Steven Freeland as Vice-Moderator, to lead scheduled informal consultations with States members on this subject.

Although these consultations have been slowed due to the current pandemic and the cancellation of the full meeting of the LSC this year (2020), nevertheless, COPUOS is actively engaged in listening to the views of its 95 member States on this matter and attempting to develop a common approach to the space resource governance issue.

Recalling, however, the comments above on suggested improvements to the way that COPUOS is structured, it should be noted that the Scientific and Technical Subcommittee (STSC) of COPUOS has no equivalent agenda item relating to space exploration or space resources; thus, the important scientific and technical aspects relating to these topics are not discussed within this forum, except through statements expressed via other agenda items.

In order to ensure the coordination of discussions within COPUOS on this multidisciplinary matter, it is suggested that the STSC and LSC should include common, permanent, agenda items on “Matters arising in relation to Space Exploration” that would provide the main Committee with the necessary expert input and recommendations from both subcommittees for it to provide guidance and request future study or further actions on all aspects relating to this complex and cross-cutting issue.

It is hoped that Canada, through its permanent delegation, might raise this suggestion in order to open the topic for broad, multilateral discussion that would go towards establishing the Committee as the natural setting for such debate and agreements.

The limited overview presentation relating to the Accords that is currently publicly available raises some specific issues that will hopefully be expanded upon as the bilateral discussions take shape.

Artist illustration -  Exploring the Moon in the Artemis Program
Artist illustration – Exploring the Moon in the Artemis Program. Credit: NASA.

The first of these relates to harmonization of the set of U.S.-led bilateral agreements. It is presumed that each bilateral agreement will be specific to the partner international space agency. While each agency will need to understand its rights and obligations with respect to its specific contribution to the overall U.S.-led program, there will also be a requirement to negotiate an equivalent Intergovernmental Agreement (IGA), as was negotiated by the partners of the International Space Station, that considers the overall program more holistically.

The current overview does not mention how such an IGA will be negotiated and whether the Accords’ principles will be an element of this more comprehensive understanding or will be strictly part of each bilateral agreement with the potential for slightly differing wording and interpretation depending on the partner agency. Secondly, the issue of “safety zones” as mentioned under the principle relating to Deconfliction of Activities raises a large number of questions that will need to be clarified before any country could agree to such a concept.

Finally, the issue of transparency, while reassuring to see mentioned, raises questions as to how intellectual property of and propriety processes developed by private sector entities are to be safeguarded once commercial mining on an extraterrestrial body commences.

To conclude this section, it is hoped that Canada, in its negotiations with NASA in order to “describe a shared vision” relating to the principles outlined in the Artemis Accords, will express its commitment to developing a multilateral approach rather than solely though bilateral agreements.

It is encouraging to note the response from the Canadian Space Agency to the enquiry from SpaceQ, dated 22 May, on this topic that included the comment that “Canada will continue to work with the US and other international partners to develop policies and guidelines for the peaceful exploration and use of space both bilaterally and in relevant multilateral fora such as the United Nations Committee on the Peaceful Uses of Outer Space”.

In part 3 of this series, we will try and develop some overarching considerations as to the global situation relating to the future governance of space exploration activities and provide some concluding remarks.

* The author would like to acknowledge the important discussion with Professor Ram Jakhu of McGill University in relation to this section.

Editors note: Part 3 will be available Friday, June 12.

Contributed by: David Kendall, former Director General of Space Science and Technology, Canadian Space Agency; former Chairman of the United Nations Committee on the Peaceful Uses of Outer Space; co-founder of the Outer Space Institute; faculty member, International Space University.

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