Part 3: Executive Orders and Artemis Accords – Considerations for Canada

NASA administrator Jim Bridenstine provides an update on the Artemis moon program. Credit: NASA TV.

In parts 1 and 2 of this series, we considered the Executive Order relating to space resources and the Artemis Accords, and what they might imply for Canada if this country signed onto supporting them. In part 3, we will attempt to wrap up the discussion within a global context, including some concluding remarks.

Artemis Accords Building blocks

In order to frame the general debate on space resource governance, several independent, international, multidisciplinary groups have been created to discuss the issues relating to human space exploration and space resource activities. The most comprehensive of these is the Hague International Space Resources Governance Working Group established in 2016 with the purpose to assess the need for a governance framework on space resources and to lay the groundwork for such a structure.

The first Hague International Space Resources Governance Working Group in April, 2018.
The first Hague International Space Resources Governance Working Group in April, 2018. Credit: The Hague International Space Resources Governance Working Group.

In 2019, it released a series of “building blocks” to underpin international discussions on the potential development of an international framework, without prejudice to its form or structure. Secondly, and in parallel to the work of Hague Working Group, the Moon Village Association published in March 2020 a set of principles in order to establish “best practices for sustainable lunar activities” to be considered by potential lunar stakeholders. Lastly, a workshop on space mining organized by the Outer Space Institute led to the publication in April 2020 of the Vancouver Recommendations on Space Mining that are intended to augment other existing recommendations and guidelines on the topic with the goal to help ensure that space mining is conducted in a safe and sustainable manner.

All three independent approaches to the topic, while differing in detail, exhibit many common elements, the main being that all advocate for the creation of an international governance regime/framework in order to support safe and sustainable space resource activities for the benefit of all countries and humankind.

Many states that do not have the means to mount any type of advanced space activity rely on the terms of the Outer Space Treaty, especially Articles I and II, to safeguard their interests in this domain.

Article II expressing the clear statement on the illegality of national appropriation, along with articles VI and XI, are expressly noted in the Artemis Accords’ overview under the description to the principle relating to Space Resources.

However, the description of this principle also highlights that space resource extraction and utilization will be conducted under the auspices of the Outer Space Treaty. This leaves the question of the Accords’ adherence to Article I, whose initial paragraph 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.”

It will be interesting to understand how the U.S. intends to fully honour this article, how it intends to ensure that the benefits accruing from future resource recovery and use will benefit other countries, and how their program will be tailored so that it addresses the interests of other countries.

This is an area that Canada should clarify during its bilateral discussions.

Blue Origin lander and ascent module
Blue Origin lander and ascent module. Credit: Blue Origin.

Artemis Program tight deadlines

A common aspect of both the Executive Order and the Artemis Accords is the tight deadline to reach agreements with partners. This is driven solely by political considerations within the United States. It can also be noted that the direction of and support for the U.S. space program has swung wildly over the past two decades or more depending on the elected President.

We must also be cognizant of the upcoming election in the United States later this year when, again, a change in direction or schedule will almost certainly be imposed if the current incumbent is replaced.

The intention for NASA to “land the first woman and the next man on the moon by 2024”, a date aligned with the conclusion of the second term of President Trump if he is re-elected and announced by U.S. Vice President Pence in March of 2019, is considered by many to be a near-impossible target given the continuing delays and slips in the schedule, the changing architecture for the program and the seeming reluctance of the U.S. Congress to provide the significantly increased funding given other, more pressing, budgetary issues that might make this date a possibility.

Although NASA is on an exceptionally fast-track development in response to the Vice President’s edict, this effort will not be contingent on international partnerships that are mostly centred around the construction of a small space station to be positioned in lunar orbit called the Lunar Orbital Platform-Gateway or ‘Gateway”.

A group photo with the Prime Minister, former and current astronauts and Cabinet Ministers
A group photo with the Prime Minister, former and current astronauts and Cabinet Ministers. Credit: Canadian Space Agency.

Canada and the Artemis Program

Canada has committed $1.9B towards providing Canadarm 3 to the Gateway program in its 2019 Space Strategy. In March of this year, Gateway was put on the back burner since it was not considered to be a mandatory element to support the 2024 landing. In a change of approach in early May, however, NASA reversed its previous statement and announced that Gateway was back in the near-term timeline and is now planned to be launched in 2023, however, with only U.S. hardware elements. How Canada’s role is now integrated into the current Artemis plan including other elements of the Canadian strategy relating to our contribution to Gateway, such as future flights for our astronauts, remains unclear.

Thus, there would appear to be no specific urgency for Canada to jump into signing agreements with the U.S. at this time until our role in the U.S.’s future space exploration plans is clarified.

In addition, given the importance of the issues to which Canada is being asked to agree, one would expect the Canadian government to initiate a consultation process with Canadian stakeholders in order to obtain the advice and input needed to make informed decisions on responding to these two announcements.

The government has several avenues open to it in order to sound out the Canadian space community including through the various aerospace associations representing mainly the commercial sector (AIAC, CASI), though consultations with leading space legal and policy experts, through the CSA’s advisory structure, and through the government’s Space Advisory Board that provides advice to the Minister of Innovation, Science and Industry on space issues and that was a major contributor to Canada’s 2019 Space Strategy.

As far as I am able to ascertain through the open literature and personal contacts, it seems that none of these bodies or individuals have been approached in order to provide advice or opinions on these significant matters.

Finally, it needs to be emphasized that the Executive Order and the Artemis Accords do not specifically state that the United States will not participate in any multilateral forum, such as UN COPUOS, in order to discuss a set of guidelines or similar agreements relating to the public and private recovery and use of space resources or to govern the civil exploration and use of outer space.

What they have stated is the rejection of both the concept of outer space being a global commons and of using the current Moon Agreement as a basis for international discussions as a way forward in relation to lunar exploration, and their intention to seek bilateral arrangements/agreements as the preferred method of working with partners.

Thus, unless there is further clarification from the U.S. as to their willingness to engage in multilateral negotiations in order to develop a broadly-based international agreement relating to the governance associated with space exploration, we are likely to start to see the fragmentation of practices, procedures and national rules developed by individual states or blocs of states working under common arrangements.

This latter scenario would be a disaster for many reasons, not the least of which would be the potential for like-minded states to need some form of protection to ensure that the exploration activities conducted by their nation, organization or allies are not compromised by another blocs’ undertakings; in other words, an expansion of reflections relating to space defense.

Given that we are at the start of discussions as to how space exploration is to be governed, it is not too late to consider options other than the one that the U.S. has proffered. In fact, it could be argued that the recent announcements by the U.S. are helpful in starting to focus on this topic and to spur international action into taking the governance of the exploration of outer space seriously.

As noted in the open letter sent to Canada’s minister of Global Affairs by members of the Outer Space Institute, Canada, with its long history of multilateral leadership relating to global challenges ranging from UN peacekeeping to the Law of the Sea to Anti-Personnel Landmines could take a leadership role in promoting an international agreement in order to preserve and develop space for the benefit of all humankind.

We are starting on a long journey and there will be many twists and turns before comprehensive agreements are signed and effective arrangements concluded.

We live a very active political and economic environment that will spring many surprises, however, make no mistake, the journey has started and there is no turning back; the recent successful delivery of humans to the ISS by SpaceX is but the start of an exciting future for humankind in the final frontier. The United States has challenged the global community to start to put into place an effective and pragmatic governance regime relating to human space exploration including a full partnership with the private sector.

Their clear intention is to go it alone and establish a self-serving regimen if current global organizations are unable or unwilling to react. Will the international community be able to respond in a timely manner or will we witness the fragmentation of the current global order relating to space governance? Personally, I hope the former and fear the latter, and sincerely hope that Canada will play a role in shaping a positive future in this exciting period of human development.

Part 1: Executive Orders and Artemis Accords – Considerations for Canada
Part 2: Artemis Accords – Considerations for Canada

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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