New Guidelines Help Cushion the Impact of Lunar Activities

By Jeffrey Murphy

In 2017, President Donald Trump announced a plan to return to the Moon. This plan manifested in the Artemis Program (Artemis was the twin sister of Apollo). NASA drafted the Artemis Accords in collaboration with international partners to create a legal framework for activities in the lunar environment. On Tuesday, October 13^th, 2020, eight nations signed the Accords to partner with NASA in the Artemis Program.

On a second front, the Moon Village Association (MVA) is a non-governmental organization founded to foster cooperation in the creation of a globally inclusive community on the lunar surface. The MVA drafted their Best Practices for Sustainable Lunar Activities with comments from space agencies across the world.

Both efforts are an attempt at creating soft law, or the beginnings of it, within the existing hard law of outer space.  The Artemis Accords can be considered hard law between the  U.S. and the other signatories but will not yet reach the level of customary international law, often referred to as soft law.

The similarities between the two efforts reflect a tentative consensus among space lawyers and policy-makers regarding the existing obligations of international law while in space. The differences serve as a primer for the areas of contention that are being worked out on-the-fly as lunar programs charge forward.

The similarities placing the two sets of principles in context of the hard law is expected because all space actors must continue to act within these limits. Both efforts incorporate the Outer Space Treaty (OST). Similarly, both fail to mention or incorporate the Moon Treaty. The reiteration of limiting activity to peaceful purposes is front and center in both efforts, as is deconfliction of activities.

Although both have deconfliction as a goal, the approaches differ between the two sets of principles to deconflict activities. The way NASA proposes to deconflict the lunar surface is through transparency, including registering objects under the Registration Convention and release of scientific data. The Accords lean heavily on Art. IX of the OST to act with due regard and acting to avoid harmful interference. Most controversially, the Accords call for the declaration of “safety zones” to give notice to other actors the vicinity where harmful interference is likely to occur based on the activity being conducted. The MVA Best Practices also seek to deconflict activities based on registration and due regard. Unlike the Accords, the Best Practices also call for alternative dispute resolution as a civil way to handle conflict should some conflict arise.

In a nod to pragmatism, both sets of principles aim to standardize interoperability to further cooperation and safety, which is just common sense if the intent is to cooperate. The final similarity involves the sustainability of current and future activity while also preserving the historical sites of the past (an issue championed through the tireless work of For All Moonkind). Sustainability focuses mostly on debris and environmental protections of the Moon and of Earth.

The differences between the principles range from the understandable to the contentious. The variance of the scope of each set of principles is understandable. The Artemis Accords are meant to be political commitments between nations to be implemented through their respective space agencies, where the MVA Best Practices include all space actors, whether governmental or non-governmental. The difference in scope can be partially explained away because private actors in space are under the supervision of the registering and launching State. In this way, the Accords will trickle down to private commercial actors to some degree. Also, many private actors, at least in the near future, will be acting as contractors in state programs connected to the Artemis Program, making them bound by the Accords when integrated into contracts. The remaining differences are where the MVA Best Practices go beyond the principles released for Artemis.

The MVA Best Practices aim to foster a community of actors on the Moon. Their aim is manifested in benefit-sharing, which is likely to be contentious. The MVA Best Practices also seek to encourage wider participation of nations in the proverbial Moon Village, especially in the realm of scientific research. Finally, the MVA Best Practices tackle an issue that has been on the minds of space lawyers since there were space lawyers: Conflict Resolution. The MVA Best Practices endorse and encourage alternate dispute resolution and state enforcement of arbitral awards.

While the approaches are likely to be different and the scope will vary based on the source, both organizations are attempting to clarify broad principles of space law while laying the groundwork for potential development of soft law or even future hard law. The efforts point to the need for clarity and regulatory certainty for the actors who are making significant investments in pushing society forward into the next frontier.