The Artemis Accords: The Necessary Incentive of Space Extraction Rights
The inclusion of property and extraction rights in the Artemis Accords will be instrumental in spurring the development of humanity’s next frontier.
The Artemis Accords provide for the first manned mission to the moon since Apollo 17 in 1972 and create a framework for the economic and technological development necessary for future space exploration. Photo: NASA.
By: Andrew Brooks, Staff Member
While SpaceX and Blue Origin have been making headlines for their privately sponsored development of space technologies, they have not been operating without the support of traditional governments and agencies. Commercial space companies have received over $7 billion since 2000. In 2020 alone, NASA has awarded nearly $1 billion in contracts to develop the next lunar lander, and another $370 million in “tipping point” contracts for technologies close to commercialization.
The most important development for the commercialization of space, however, does not involve direct financial sponsorship at all. Rather, it is the October 13, 2020 signing of the Artemis Accords (the “Accords”) by eight nations and the resultant recognition of private extraction rights in space. In doing so, the Accords should be lauded for breaking the gridlock that has paralyzed the international space community, and should be seen as a blueprint for future agreements.
Building upon the Outer Space Treaty of 1967—the most widely adopted space law treaty to date—the Accords seek to establish a framework for future cooperation in exploring and utilizing space. The long-anticipated ratification of the Accords prompted a flurry of articles expressing both support for and skepticism of their effects and objectives. It is no surprise that the Accords have been heavily analyzed: with the exception of the 1998 ISS Agreement, the Accords are the first major international agreement on space since 1979, when no more than a handful of countries—and none of the United States, the Soviet Union, or the Peoples’ Republic of China—ratified the Moon Treaty.
The Accords recognize the reality of space’s growing commercial influence. Morgan Stanley predicts the size of the space market to nearly triple by 2040, rising from a current $350 billion valuation to over $1 trillion, even before breakthroughs in fields such as asteroid mining (which is predicted to be a multi-trillion dollar industry and to create the world’s first trillionaire). Beyond economics, asteroid mining would also carry environmental benefits and the capacity for humanity to produce fuel in space, more than compensating for the cost of launching asteroid missions from earth.
The gargantuan potential benefits of asteroid mining have been known for years. Why, then, did it take so long for any sort of international agreement regarding extraction rights to be ratified? The answer to this question can be seen in one of the major, but misguided, criticisms of the Artemis Accords: that the creation of space property rights is nothing more than a “lunar resources land-grab”.
This complaint is particularly interesting as it is the exact opposite of a common criticism that was leveled against the 1979 Moon Treaty. Article 11 of the Moon Treaty reads that “[no] part [of the moon] or natural resources in place, shall become property of any State, international intergovernmental or nongovernmental organization.” For this reason, the Moon Treaty was seen as putting a “moratorium on lunar resource extraction until an international regime [was] established.” This can be contrasted with the tacit approval of resource extraction found in Section 10 of the Accords, which “affirm[s] that the extraction of space resources does not inherently constitute national appropriation.”
The fact that Section 10 of the Accords brokers controversy or criticism is reflective of a mentality that has hampered space development for decades. It is no coincidence that seven of the eight countries which ratified the Artemis Accords refused to sign the Moon Treaty. The Accords, unlike the Moon Treaty, pragmatically provide an incentive that has spurred human development and exploration throughout history—ownership rights in the fruits of your labor.
The history of innovation is replete with government incentives for private development. Some incentives took the form of cash prizes, similar to the above-mentioned programs operated by the U.S. government. For example, the British famously offered a cash prize to the first person who would develop a method for determining the longitude of ships at sea, and Napoleon offered a prize for food preservation which led to the invention of canning. The other type of incentive, which the Artemis Accords recognize and create in the space field for the first time, is ownership rights.
As Alan Wasser—one of the foremost theorists of space property rights—phrases it: the “right to claim newly settled property has always provided the economic incentive for human expansion.” This held true historically during the Age of Discovery, when joint-stock chartered companies raised massive amounts of capital, funding European exploration and settlement. It also holds true in the modern age, with the patent and copyright systems protecting the owner’s ability to profit from their investment. There is no reason then to assume that ownership rights will provide any lesser incentive for future space development.
Despite what critics claim, ownership rights are not a proxy for “national dominance.” Such rights do not displace “multilateral international cooperation.” To the contrary, the emergence of private ownership in space will invariably benefit the sort of multinational coalitions best able to fund the enormous amounts of investment needed to reap any benefit. It is true that there will invariably be competition between private enterprises and partnerships; this is unavoidable given the economic stakes. But this competition is unlikely to be violent. The nation-state signatories of the Accords not only agreed to remain compliant with past agreements and their prohibitions on the militarization of space, but further agreed to “make the scientific results obtained from cooperative activities under these Accords available to the public and the international scientific community.”
The Artemis Accords recognize the economic benefits that will flow from space exploration and development. However, unlike the ill-fated 1979 Moon Treaty, they also harness human nature and the incentives that history has shown lead to results. Through recognizing the existence of property rights in space, the Accords provide the framework to protect investment in the space field and give investors the hope that perhaps they themselves will be the world’s first trillionaires.
Andrew Brooks is a second-year student at Columbia Law School, a Staff member of the Columbia Journal of Transnational Law, and the founder and president of the Columbia Air and Space Law Association. He graduated from the Dual BA Program between Columbia University and Sciences Po Paris in 2018, and previously worked at General Atomics.