Cody Curabba
There are five international treaties governing space exploration and countries’ actions while braving the harsh environment of space.[1] But none are as infamous as the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Colloquially known as “the Outer Space Treaty,” (“OST”) each signatory to this document swears a solemn oath: that they will explore outer space in a peaceful and responsible manner. For over fifty years, no other treaty matched the OST’s ambition. Until 2020, that is.
In the year 2020, the United States introduced a new document of international significance: the Artemis Accords. Though more limited in scope than the OST, this document seeks to “operationalize” the terms of the OST by fostering transparency, cooperation, and teamwork between nations. It explicitly aims to “establish a political understanding regarding mutually beneficial practices for the future exploration and use of outer space, with a focus on activities conducted in support of the Artemis Program.”
Although formed with similar goals in mind, the OST and the Artemis Accords differ in both application and enforceability. These differences are worth exploring as Earth enters its space renaissance.
Applying Principles
The first distinction between the two treaties can be found in their respective approaches to applying their key principles. Though proactive in its terms, the OST offered no guidance on how its international provisions should be incorporated into domestic law. Rather, the precise way in which parties to the OST would carry out their obligations was “left to the discretion of the state[s].” This led to many countries creating bespoke frameworks that lacked cohesion.[2] Others have no framework at all. Accordingly, countries that favored private enterprise, like the United States, took a wildly different approach to overseeing space operations than authoritarian regimes like the Soviet Union. The Artemis Accords turns this fossilized approach on its head.
Under the Artemis Accords, signatories participating in the Artemis Program are encouraged to be transparent, share information about space activities, and standardize technical components to ensure interoperability between spacecraft and systems. Unlike the OST, however, the means of implementation are written directly into Section 2 of the Artemis Accords themselves:
Cooperative activities regarding the exploration and use of outer space may be implemented through appropriate instruments, such as Memoranda of Understanding, Implementing Arrangements under existing Government-to-Government Agreements, Agency-to-Agency arrangements, or other instruments.
This streamlined approach to implementation is a marked improvement over the OST’s isolationist bent, providing a concrete pathway for cooperation and oversight of private enterprise. But the terms of any agreement, whether international or not, lack meaning if they are not followed. This begs the question: how are the terms of the OST and Artemis Accords enforced?
Enforceability
The other major difference between the OST and the Artemis Accords is their respective legal effects. A treaty is a binding legal agreement between two or more countries. An accord, however, is merely a concurrence of opinion lacking explicit legal force. Accordingly (no pun intended), the OST is a legally enforceable agreement between the 114 nations that have adopted it, while the Artemis Accords, with its 27 signatories, merely acts as an aspirational successor to the OST. But the terms of the Artemis Accords are not without teeth. Self-policing practices and enforcement of customary international law through the doctrine of jus cogens compel compliance with its terms.
When concerns were raised regarding the Artemis Accords’ perceived lack of enforceability, former NASA administrator Jim Bridenstine made it clear that any nation that fails to comply with its obligations would be asked to leave the coalition of Artemis Nations. This weight of potential exile and international ridicule from such a self-policing practice is a strong motivator for compliance. Otherwise, the breaching parties risk watching from the side lines as more virtuous nations explore the stars in lock-step fashion.
However, if the good will of like-minded nations is not enough to compel compliance, the doctrine of jus cogens will likely come into play. Here, well-established norms of international behavior have an implicitly binding legal effect on nations. Because the Artemis Accords are a direct successor to the OST, it implicates over fifty years of normative international behavior among space-faring nations. Thus, a strong argument can be made that the terms of the Artemis Accords are so enshrined in storied international practice that they are legally binding, despite the lack of an explicit method for enforcement in the document itself.
But legal enforceability may not be as important as it seems. It may be surprising to learn that the OST, or any of the four other space-related treaties, have never been the foundation of a legal dispute, despite instances in which they were clearly implicated. For example, a nuclear-powered Soviet reconnaissance satellite (Cosmos 954) broke up over Northern Canada in 1978. Under the 1972 Convention on International Liability for Damage caused by Space Objects and the international practice of states, liability was certain – the Soviet Union would have to pay monetary damages to Canada for the incident. However, rather than awaiting a legal proceeding to enforce its obligation, the Soviet Union voluntarily abided by their international promise, paying the Government of Canada C$3,000,000 for efforts it was forced to undertake to clear Cosmos 954’s radioactive debris.
While international pressure undoubtedly motivated the Soviet Union to reach a settlement with Canada, Cosmos 954 is a phenomenal case study for the voluntary enforcement of both the OST’s and Artemis Accords’ principles. When the eyes of the international community are watching, compliance is far more likely. Accordingly, in light of the Cosmos 954 incident and the self-policing practice outlined above, it is unlikely that legal enforcement of the OST or Artemis Accords will ever become a reality. In any case, legal enforcement remains an explicit option for the OST, while the doctrine of jus cogens remains an implicit option for the Artemis Accords.
Conclusion
In summary, both the OST and Artemis Accords promote generally agreeable norms for exploration, but each differ in the application and enforcement of their terms. The OST implicitly entrusted the application of its principles to signatory nations, while explicitly providing for legal enforceability. The Artemis Accords juxtaposed this by explicitly outlining the means for application of its terms while only providing an implicit means of enforcement.
Though neither document has been the subject of a legal dispute, Canada and the Soviet Union voluntarily abided by the OST’s sister treaty following the crash of Cosmos 954. While reliance on the good-will of signatories to comply with their international promises can generate unease, the OST’s explicit legal enforceability, and application of self-policing and the doctrine of jus cogens to the Artemis Accords, quells any concerns.
[1] The five treaties are: the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space; the Space Liability Convention of 1972; the 1975 Convention on Registration of Objects Launched into Outer Space; and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.
[2] For instance, commercial companies in the United States primarily obtain authority to operate from three federal agencies: the Federal Aviation Administration, Federal Communications Commission, National Oceanic and Atmospheric Administration, depending on the mission and company at issue.