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Australia Between the Moon Agreement and the Artemis Accords

03 Jun 2021
By Dr Fabio Tronchetti and Dr Hao Liu
 The full moon is pictured as the International Space Station orbited 254 miles above the Pacific Ocean northeast of Guam. Source: NASA

Australia is the only state party to the Moon Agreement to have signed the Artemis Accords. Australia’s simultaneous membership of both instruments is problematic both from a diplomatic and a legal standpoint.

On 15 October 2020, Australia signed the US Artemis Accords. Such a move was described as an important step to confirm the country’s commitment to a safe utilisation of outer space and as a means to promote its prosperous future. Some of the principles of the Accords, such as those related to the use of space resources and the deconfliction of activities, appear to be in contrast with core provisions of the Moon Agreement. Additionally, the approach endorsed by the Accords significantly clashes with the multilateral philosophy embraced by the Agreement. Based on these considerations, Australia should either reconsider its membership to the Moon Agreement or, at least, clarify how the two instruments may co-exist.

Considered from an historical perspective, Australia’s decision to join the Artemis Program should not come as a major surprise. Indeed, Australia has a long tradition of cooperation with the US in the space sector that began in 1960 with the signing of a bilateral treaty on space vehicle tracking. This move led to the establishment of NASA’s first deep-tracking station outside of the United States in Woomera, South Australia. Still today, stations located through Australian monitor satellites, probes, and rovers on behalf of NASA.

Undoubtedly, there are some positive aspects associated with the simultaneous participation of Australia to the Moon Agreement and the Artemis Accords. First, the Accords promote the rule of law in the exploration and use of celestial bodies. Second, some of the Accords’ provisions mirror those of the Moon Agreement, for instance with regard to the assistance to astronauts and the release of scientific data. Third, the Accords enable Australia to join a limited group of states willing to push the boundaries of space exploration and innovation.

Despite these positive elements, there seem to be way more controversial issues that not only render Australia’s involvement in both instruments problematic but may also eventually “force” the country to reconsider its participation to the Moon Agreement. Firstly, there is inconsistency between the approach and philosophy that the two instruments embrace. While the Moon Agreement promotes multilateralism in the development of a legal regime to govern lunar activities and in their management, the Artemis Accords, while indicating the signatories’ willingness to join multilateral initiatives, are not the product of a multilateral effort but are, instead, the result of a regulatory initiative undertaken at domestic US level that reflects American interests and the foreign policy approach of the Trump Administration. Importantly, the Moon Agreement was rooted in the concept of the common heritage of mankind and in the idea that lunar activities should represent an opportunity for all mankind. The United States has not only officially rejected the Moon Agreement and the philosophy that it embodies, but it has also made clear that activities on the Moon activities should pursue commercial goals and involve private entities. If one accepts the argument that, by joining the Artemis Accords, a country automatically also endorses the US legal approach to celestial bodies’ activities, it should be immediately evident how problematic Australia’s membership of both instruments is.

On the provisions of the Moon Agreement and the Artemis Accords, the most controversial aspects concern the utilisation of space resources, as the two instruments take opposing paths. The Moon Agreement provides that the commercial use of lunar resources be regulated by an international regime having the objective of safely managing the “common” area and equitably sharing the benefits derived therein. On the contrary, the Artemis Accords are based on the premise that the recovery and commercial use of space resources is allowed under international space law, particularly under the Outer Space Treaty, and that signatories may conclude contracts among each other specifying the conditions for such utilisation. Such an approach is rooted in the US interpretation of the Outer Space Treaty. Accordingly, the United States not only rejects the global commons nature of outer space but also confers to private entities, under US law, the right to collect, use and sale celestial bodies’ resources. Ultimately, while the Moon Agreement embraces a multilateral approach to the commercial use of resources, the Artemis Accords, while not shutting down the door to future international rules, consider the existing space law principles to be sufficient and capable of enabling commercial operations, including those undertaken by private entities.

Additional areas of concern between the two instruments emerge in connection to the issues of environmental protection and deconfliction of activities. One of the most innovative aspects of the Moon Agreement is its attention on the environmental impact of human activities on the celestial bodies’ environment, a point which had not been previously addressed by any of the space treaties. While the Artemis Accords pay exclusive attention to the mitigation of orbital debris, through the passivation and disposal of spacecraft at the end of their mission, the absence of any provision addressing the harmful environmental impact of activities on the lunar soil and subsoil is concerning and leads to inconsistencies in the way operations undertaken under the Accords and the Moon Agreement might be conducted.

Section 11 of the Artemis Accords foresees the establishment of “safety zones” on the Moon surface as a means to prevent harmful interferences among the signatories’ activities. The Moon Agreement only indirectly touches upon a similar topic when it indicates that in establishing a Moon station, parties shall only use the area required for the needs of such a station and shall inform the UN secretary-general of its purpose. In practice, it remains to be seen how the setting up of safety zones will effectively ensure free access to Moon sites and will not result in the indirect appropriation of the safety zone’s area. Third parties, including parties to the Moon Agreement, will not be under any obligation to recognise the validity of safety zones established under the Accords. Thus, Australia might find itself in the awkward situation of being directly involved in the establishment of one of those zones, while the other parties to the Moon Agreement might contest the legitimacy of that move.

An additional area of possible contrast between the Accords and the Agreement concerns the notion of “peaceful uses” of outer space. The Moon Agreement describes the limits that such a notion imposes on military activities, for example by prohibiting the threat or use of force on the Moon and the placement on the Moon and its trajectory of objects carrying nuclear weapons and weapons of mass destruction. The Accords simply state that the signatories’ activities should be undertaken for peaceful purposes. Previously, this absence would have not been particularly problematic. However, in light of the recent US Space Force doctrine that sees outer space as a warfighting domain and envisions the use of military space forces to protect, defend and project American interests, one has to wonder if the measures taken by the United States and the signatories to the Accords to protect their national interests will be consistent with international law and the non-aggressive nature of “peaceful use of outer space.”

A final aspect to be considered is the relation between Australia and the other parties to the Moon Agreement. Under general principles of international law, a country is required to apply in good faith the provisions of a treaty to which it is a party to. It is hard to argue that Australia’s decision violates, per se, its obligations under the Moon Agreement. However, as several of the Accords’ provisions clash with those of the Agreement, such a move might hamper the realisation of the Agreement’s goals and interfere with other parties’ rights. Consequently, these parties would be first entitled to request consultations with Australia, and if no mutually acceptable solution of the controversy would be possible, they could make recourse to other peaceful means to settle their dispute, including temporarily reducing diplomatic relations with Australia; undertaking activities within the framework of the Agreement without involving Australia; and recommending Australia to reconsider its participation to the Agreement itself.

Australia views space as a strategic resource capable of contributing to the country’s technological and social progress. Accordingly, Australia is open to collaborate in space projects that promise valuable economic and social rewards and provide international visibility to the Australian space program. Seen from this perspective, Australia’s decision to join the Artemis Accords seems logical, as not only puts the country at the forefront of an ambitious space exploration project but also has the potential to generate important benefits.

Australia might have to eventually assess whether permanence in the Moon Agreement is in its best interest. This is not a decision that the country should make in the immediate future, as it is difficult to envision how the Accords will be effectively implemented and how the parties to the Moon Agreement will react to it. In the short term, however, it is advisable for Australia to clarify its position and address the issues arising from its simultaneous membership of the Artemis Accords and the Moon Agreement. Such a move would prevent unnecessary disagreements with third countries and would contribute to creating a favourable environment for international discussions on space resources utilisation.

Dr Fabio Tronchetti is a co-director of the Institute of Space Law and Strategy and Zhuoyue Associate Professor at Beihang University, Beijing. He also holds the position of Adjunct Professor of Comparative National Space Law at the School of Law of the University of Mississippi.

Dr Hao Liu is deputy director of the National Research Center of Air Traffic Management Law and Standard at Beihang University, China. He is also an adjunct professor at the Beijing Institute of Technology and a Chair Professor at Xihua University.

This article is an extract from Tronchetti and Liu’s article in the Australian Journal of International Affairs titled “Australia’s signing of the Artemis Accords: a positive development or a controversial choice?” It is republished with permission.