Artemis agreements leave big questions about space mining largely unanswered

Last week, the United States, Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom signed the relatively tight Artemis Accords, a series of rather vague recognitions on the future of space exploration. NASA has reportedly been working bilaterally with each of the signatories for some time to work out the details (or lack thereof) of the agreement. While Russia, which has long been a US partner in space exploration, hasn’t signed yet, NASA administrator Jim Bridenstine hopes it will soon.

Artemis is the goddess of the moon in Greek mythology, and the deals appear to be interested, at least initially, in the upcoming similarly named U.S. Artemis Lunar Exploration Program, which is slated to resume manned missions to the moon through 2024. The deal is said to be the further consolidate the principles set out in the 1967 Space Treaty and its descendants. Therefore, the agreements – despite their broad, albeit superficial range of topics – seem to have a special purpose: The signing of the bilateral agreements, which are a prerequisite for inclusion in these NASA manned lunar missions, is intended to provide legal support for the mining of the moon and others Heavenly bodies.

Eight countries sign agreements on the future of space exploration. Photo: Getty Images

While it is ironic that on the eve of the 20th anniversary of human existence in space on the aptly named International Space Station, the US led these bilateral agreements for the most part alone, it is understandable why that choice was made. NASA administrators have essentially admitted that the UN Committee for the Peaceful Uses of Outer Space (COPUOS) is probably the best forum for determining what we can and cannot do in space in the face of things like moon mining and mineral extraction It is not time to wait for the consensus-based body to come to a decision, especially if diplomacy, from a US perspective, calls for an underperformance provision that sees resource extraction from the moon as a necessity for future lunar bases.

While the issues of space mining are relatively new to space law, much of the other language agreed in the agreements reaffirms longstanding practice, if not full, of international law as set out in the first four of the five space treaties and as enacted by practiced by most of the aerospace nations for the past half century. These repetitions include, for example, the obligation to register relevant space objects as well as a renewed confirmation of the obligation to help personnel in need in space.

In particular, in the text of the new agreement, the term “astronaut” from the previous space treaties has been replaced by the more general term “personnel”. It is possible that this was intended, given the looming reality that future space travel will include civilian tourists and other unconventional passengers who are not astronauts in the traditional sense.

Regardless of the particular realization that billionaires like Sir Richard Branson’s Virgin Galactic will play an increasingly important role in space travel, there’s little other recognition that much of space exploration beyond Branson’s suborbital tourist flights will also be private in nature.

Richard Branson’s thoughts on an astronaut’s helmet. Photo: Getty Images

Indeed, the only direct recognition of the increasingly central role of private space actors seems to be that a data exchange exception has been worked out for these private actors. That’s it. In fact, it is unclear whether the lack of other outsourcing of private actors in the rest of the document implies that there aren’t any, and whether the private sector is equally tied to them or simply not part of the business. The latter seems more likely.

A particularly interesting aspect of the treaty is the commitment to preserve older landing sites as a common legacy of humanity, as if the bags of astronaut droppings that were unceremoniously thrown on the moon had a sacred value. However, this has been the goal of a number of non-governmental organizations for some time, so it is not surprising that it eventually became a multinational document. Similarly, in relation to the protection of the space environment, in the last two essential, albeit short and vague, paragraphs the parties have agreed to address one of the greatest problems in space – debris from space, also known as space debris. The agreements make a clear distinction between the space debris that we left on the moon and which is now protected under the treaties from the circulating space debris that must be removed with the garbage.

The most surprising part of the deals, however, was the not-too-subtle burying of the leadership. Finally, near the end of the document, the parties agree to the main purpose of the document outlined above: the mining of celestial bodies is legal under international law, and countries have the right to create “safety zones” that appear to be comparable to those in the document, excluding economic zones of the sea protecting distant coasts and national interests.

The controversial topic of space mining has been bouncing around for some time (like a lunar astronaut in an eighth of Earth’s gravity). The space treaties are somewhat ambiguous on this issue. You clearly state that space is the “province of all humanity” and that national appropriation is discouraged, but it is not clear whether that means you cannot extract any resources at all. For example, the Antarctic Treaty system, which regulates Antarctica, which is almost as remote, had to expressly stipulate a mining ban, as this is not clear enough from the other treaty texts.

Another inhospitable place, the deep sea, is also considered a universal resource, and like in Antarctica, we are allowed to extract fish from the deep sea. In addition, deep-sea lawns allow minerals to be extracted under international law, although none have yet been extracted. To some extent, the US is trying to create the same understanding of space, with the support of a handful of other international actors.

At least two countries, the US in 2015 under President Obama and Luxembourg in 2017 and possibly the most recently the United Arab Emirates, already have laws that provide for the extraction of minerals from extraterrestrial bodies. The signing of these new agreements merely further concretizes this US understanding of international space law in the Artemis Agreement. This US legal understanding could become an established law, especially if other nations don’t oppose NASA’s mining activities on the moon.

To get the ball going early, NASA transparently offered in September to buy extracted lunar regolites from private companies to set a precedent for further strengthening its position in international mining law. NASA hopes no one will cause international fuss when this happens.

Perhaps this lucrative business opportunity can help fund the next Israeli moon shot and provide much-needed financial assistance to the growing Israeli civil space industry.