I was on a panel last week on whether and how NASA’s Artemis Accords should serve as a model for future space settlement. It was an interesting discussion, and you can watch a recording of it here.
First, what are the Artemis Accords? The accords are a set of proposals from NASA to its international partners to agree on how they’ll work together in going back to the Moon. The proposals cover such prosaic matters as interoperability, urgent issues such as space debris, and the most sublime, that we shall use space for peaceful purposes. The accords constitute NASA’s attempt to implement some of the very general principles in the outer space treaties when returning people to the moon.
Given that the accords will apply to people going to the Moon, should we look to them as models for future space settlement? I think that they may serve as a fine checklist for issues to address, but many of the principles NASA articulates are better suited to government agencies than the private sector, and it looks as if the private sector will be the likely driver for actual settlement.
So, how would the accords work if applied to the private sector? Two look problematic, and one looks close to helpful.
Transparency. The accords say that: “Transparency is a key principle for responsible civil space exploration and NASA has always taken care to publicly describe its policies and plans. Artemis Accords partner nations will be required to uphold this principle by publicly describing their own policies and plans in a transparent manner.”
This is a great admonition for government agencies such as NASA or the European Space Agency. The citizenry is paying for the agency’s activities. It’s nice for us to know what’s going on. It’s great for the science community, too, of course; and, it may help reduce conflict by alerting others to possible friction points.
However, businesses have different interests. They have proprietary data, trade secrets, intellectual property, and other competitively sensitive information, such as their actual business plans. Sharing that information could result in competitive harm. Should a small business with a brilliant new idea be forced to give it up to better funded, more established companies? Should a miner who has, after years of searching, found a lode* of platinum group minerals have to tell everyone else where it is? Not if we want him incentivized to look, find, and mine it.
Interoperability. The accords say: “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.”
Interoperability makes sense for a group of government agencies planning to conduct operations together. But just because they work out how to mate their hardware for their first round of efforts, doesn’t mean that their decisions should be memorialized in regulations applicable to the private sector. Standards that evolve organically over time may work the best. They get tested in real world situations, their flaws uncovered, and they can change before being enshrined in regulations. There’s nothing more sad than an engineer staring at you saying, “Why do I have to do it that way? The people who came up with that had never tried it before. They learned from their mistakes. So should we. Why is it mandatory now?” It’s something about the eyes. Engineers do sad eyes well.
Space resources. The accords say: “The ability to extract and utilize resources on the Moon, Mars, and asteroids will be critical to support safe and sustainable space exploration and development. The Artemis Accords reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty, with specific emphasis on Articles II, VI, and XI.”
In 2015 Congress recognized the right of U.S. companies to extract resources from outer space, including celestial bodies. More recently, the President reiterated strong support for that right. Legal certainty about being able to reap the rewards of one’s investments and labors should encourage private activity in space, the development of space resources and technologies, and private investment. Reaffirming such principles can only help make space settlement happen.
*I don’t know if “lode” is the correct term here, especially for minerals that may appear in deposits around craters. See, Moonrush, Wingo, D.
Laura, you always have interesting insights. See! Who says we don’t need lawyers!
Lawyers (and some engineers who have spent too much time inside the beltway) ask the hard questions about how the aspirational goals expressed in the Artimis Accords will actually work in practice. It would be great if everyone would always just do the right thing and work together in the spirit of peaceful cooperation, but sometimes people act like people and behave badly. In those cases, the lawyers need to ask under what authority and by what mechanisms will the rules be enforced. Given enough time someone (and their lawyers) will test the boundaries.
That was the thought behind my question during the discussion about authority to compel a satellite operator to expend resources to change the orbital parameters to avoid a potential collision. While we have good voluntary cooperation now, there will come a day when someone will not want to spend fuel moving their satellite. What then? There has to be a means to compel compliance and we probably shouldn’t wait until after the first orbital collision with the ensuing debris cloud to sort it out.
Also, if I have to move my satellite to avoid a probable collision with someone else’s satellite or space junk, can I sue them for the loss of income from the shortened operational life, or the cost to accelerate a replacement satellite? Lot’s of interesting questions.
Finally, it’s good to know that – deep, deep, deep down – lawyers really feel empathy for those poor sad engineers when they tell them, “No.” As you described those poor engineers, I had an image in my mind of Puss ‘n Boots from the Disney Shrek cartoons with those big sad eyes – and of course a pocket protector and slide rule.
Hah. And, it’s not buried that deep.
As for space debris, I continue to think someone should offer a prize to whoever figures out how to de-orbit large pieces safely.
NASA/the US (since NASA is working directly with State on this also) always makes clear that everything to be done will be consistent with the OST. However, as David Kendall, a former Chairman of UN-COPUOUS, ha written elsewhere, there’s a part of OST the US has been silent about:
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.
Actually, I think Scott Pace and one of the Directives explained that the U.S. does not view outer space as a commons.
When you parse Article I, you can see that it is the “exploration and use” of outer space that is the province of all mankind. In other words, all mankind gets to explore and use outer space.
Whatever “for the benefit and in the interests of all countries” means, it probably doesn’t mean that whoever makes money in space has to pay it as tax to the rest of the world. The Moon Treaty says something like that, and the U.S. didn’t sign it.
Best view in the town !