The Current Geopolitical Effect on Space Law & the Lunar Gateway Project

The Current Geopolitical Effect on Space Law

In an era of globalization, the Russian invasion of Ukraine has pulled in the participation of other countries in a political and economic maelstrom. As a result, both international and space law is being tested on an unprecedented level. There are already signs the invasion has accelerated a departure from traditional space law, such as the Outer Space Treaty, which can be seen through the invasion’s effect on the Lunar Gateway project. However, this departure may also have unexpected benefits, as demonstrated by the forging of new international partnerships. Regardless, the Outer Space Treaty will be challenged under the current geopolitical environment.

The Outer Space Treaty

The Outer Space Treaty is a U.N. international agreement that forms the basis of most international space law, and has been signed by 113 countries, including the U.S. and Russia.[1] Of particular note is the idyllic language used in the treaty.

For example, the Outer Space Treaty emphasizes broad international friendliness and co-operation.[2] The Annex of the Outer Space Treaty declares that States party to the treaty have agreed “to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes, believing that such co-operation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples.” [3] This is later reinforced by Article I of the treaty, which states “there shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.” [4]

Additionally, the Outer Space Treaty also demonstrates major commitment by parties to a fair and equitable treatment of outer space, especially its resources. Article II of the treaty states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” [5]

Clearly, the Outer Space Treaty expects the most ideal interactions between its party members. Reality, however, has proven different from those expectations.

The History of the Lunar Gateway Project

In 2017, NASA and Roscosmos, the space agencies for the U.S. and Russia respectively signed a joint statement acknowledging their cooperation to build a space station orbiting the moon, known as the Lunar Gateway project.[6] The goal is to create a station to support deep space exploration of the moon and Mars.[7] In the agreement, there was an understanding that Roscosmos would provide the airlock for the gateway.[8] Overall, the initial cooperation between the two space agencies seemed robust and exemplified the co-operative sentiment of the Outer Space Treaty.

But stark reality has proved different. Underlying the friendly atmosphere was NASA’s dependence on Russian Soyuz capsules as vehicles into space.[9] This reliance relationship changed with the emergence of third-party rocket providers, such as SpaceX and Boeing[10], because all of a sudden NASA had viable options other than the Soyuz to ferry astronauts to and from space. Roscosmos’s outward feelings towards the project also changed. In 2020, Roscosmos started expressing concerns that the Lunar Gateway was becoming too U.S. centric.[11] Shortly thereafter, NASA sent out formal agreements for the project to which Roscosmos never responded.[12] Finally, in March of 2021, Roscosmos signed an agreement with China National Space Administration to build their own International Lunar Research Station (ILRS), signaling the end of any cooperation with the NASA to build an orbiting lunar station.[13]

The Effect of Russia’s Invasion on the Lunar Gateway Project

Then came the Russian invasion of Ukraine in 2022. Currently, at least 8,000 Ukrainian civilians have been killed and nearly 18 million Ukrainians are in dire need of humanitarian assistance, with 14 million displaced from their homes.[14] As a result of invasion, the U.S. placed several sanctions on Russia, which affected Russia’s aerospace industry.[15] The sanctions have effectively hamstrung Russia’s aerospace industry by blocking the importation of computer chips needed for space activities.[16] Russia had already threatened to leave the International Space Station (ISS) as a response to past sanctions.[17] With the new sanctions placed due to the invasion of Ukraine, Roscosmos has gone as far as warning other ISS participants that they will be the cause of the ISS crashing into Earth should the sanctions not be lifted.[18]

The Effect of Current Events on the Outer Space Treaty

So, what do the current events mean for the Outer Space Treaty? They seem to represent an accelerated departure from the treaty.

To start, take the clauses in the Outer Space Treaty that espouse facilitating and encouraging international cooperation. The history of the Lunar Gateway project demonstrated that nations were already moving away from international cooperation in space. Russia stated that they removed themselves from the Lunar Gateway project because the project was too focused on American interests.[19] However, the stated goals of the ILRS and the Lunar Gateway project largely mirror each other.[20] Russia also stated that the cooperation in the Lunar Gateway Project should mirror the cooperation in the ISS[21], but the agreements NASA sent to Roscosmos were based off the same agreements as the ISS.[22] This could indicate that Roscosmos decision to pull out of the Lunar Gateway project is not actually due to the Lunar Project’s focus on American goals. Regardless of the motivations of Roscosmos and Russia, this demonstrates a departure from the Outer Space Treaty’s agreement to encourage and build international cooperation. Russia’s current war with Ukraine seems to have solidified and accelerated that departure.

The ISS was largely viewed as insulated from geopolitics, but Roscosmos threatened to leave the ISS anyway due to sanctions placed on them.[23] As Russia’s invasion of Ukraine continues, more sanctions have been placed on them[24] which will likely further jeopardize Roscosmos’s participation in the ISS. Other future joint ventures into space have been threatened as well. It has been reported that Russia’s invasion has created ill will with several other countries, and that several joint launches have already been canceled or delayed due to sanctions.[25] Overall, the effect of Russia’s invasion of Ukraine seems to have accelerated the departure from the Outer Space Treaty’s international cooperation agreement terms.

Similar to the international cooperation clauses, countries were already poised to depart from the non-appropriation clause before the invasion. The Artemis Accords specifically justifies the taking of space resources.[26] With the emergence of two different space stations headed by two different groups, there most likely will be competition for space resources. For example, if Lunar Gateway Project enables its members to start taking moon resources, it’s hard to imagine that the ILRS members will sit idly by. Thus, a race to secure resources is a strong possibility, which again, would accelerate the departure from the Outer Space Treaty’s non-appropriation clause.

However, Russia’s departure from the Lunar Gateway project may have created some benefits as well. Namely, it has allowed other nations to take significantly larger roles in the project. When Roscosmos left, the United Arab Emirates (UAE) was able to fill the void.[27] This partnership may lead to a healthy trend of providing emerging space-capable countries the opportunity to contribute to major space exploration projects. While the current state of international relations may look bleak, international cooperation pursuant to the Outer Space Treaty is still feasible. There have been talks after Russia’s departure from the agreement to have the Lunar Gateway project still be interoperable with Russian spacecraft to allow for future possible docking.[28] Additionally, the relationship between NASA and Roscosmos has not completely deteriorated as evidenced by Roscosmos recently launching a space vehicle to rescue two cosmonauts and one NASA astronaut stranded on the ISS.[29]

Conclusion

            The state of international space law will be interesting to observe in the upcoming years. As Lunar Gateway and the ILRS begin construction, the idea of international cooperation amidst the geopolitical tension created by the ongoing war between Russia and Ukraine seems difficult to comprehend. Perhaps the war will lead to a total deterioration of international cooperation and equitable treatment of space resources. Or maybe, the increased competition will spur the growth of space agencies for other nations. Both outcomes may be possible at the same time. Either way, recent events have shown that the Outer Space Treaty, while idyllic in nature, will continue to have its core principles challenged in the current geopolitical atmosphere.

[1] https://treaties.unoda.org/t/outer_space

[2] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Annex, Oct. 10. 1967, 861 U.N.T.S. 187 [hereinafter Outer Space Treaty].

[3] Id.

[4] Id. at art. I

[5] Id. at art. II

[6] https://www.nasa.gov/feature/nasa-roscosmos-sign-joint-statement-on-researching-exploring-deep-space

[7] https://www.nasa.gov/gateway/overview

[8] https://www.reuters.com/article/us-space-exploration-nasa-russia/nasa-chief-says-russia-ties-solid-as-moscows-space-chief-rejects-u-s-led-moon-program-idUSKCN24G036

[9] https://www.forbes.com/sites/jonathanocallaghan/2020/04/09/the-last-soyuznasa-ends-reliance-on-russia-with-final-launch-before-crew-dragon/?sh=69e2f46b235a

[10] Id.

[11] https://www.theverge.com/2020/10/12/21512712/nasa-roscosmos-russia-dmitry-rogozin-artemis-moon-interntational-cooperation

[12] Id.

[13] http://www.cnsa.gov.cn/english/n6465652/n6465653/c6811380/content.html

[14] https://news.un.org/en/story/2023/02/1133737

[15] https://www.space.com/us-russia-sanctions-space-program-impact

[16] https://www.protocol.com/enterprise/russia-ukraine-chip-sanctions

[17] https://www.cnbc.com/amp/2021/06/07/russia-threatens-to-leave-international-space-station-program.html

[18] https://www.cbsnews.com/news/russia-ukraine-sanctions-space-station-operations/

[19] https://www.theverge.com/2020/10/12/21512712/nasa-roscosmos-russia-dmitry-rogozin-artemis-moon-interntational-cooperation

[20] http://www.cnsa.gov.cn/english/n6465652/n6465653/c6812150/content.html

[21] https://spacenews.com/russia-skeptical-about-participating-in-lunar-gateway/

[22] https://www.theverge.com/2020/10/12/21512712/nasa-roscosmos-russia-dmitry-rogozin-artemis-moon-interntational-cooperation

[23] https://www.space.com/russia-war-ukraine-damage-international-spaceflight-cooperation

[24] https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/24/fact-sheet-on-one-year-anniversary-of-russias-invasion-of-ukraine-biden-administration-announces-actions-to-support-ukraine-and-hold-russia-accountable/

[25] https://www.space.com/russia-war-ukraine-damage-international-spaceflight-cooperation

[26] The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, § 10

[27] https://arstechnica.com/science/2022/12/nasa-is-negotiating-with-uae-to-provide-an-airlock-for-the-lunar-gateway/

[28] https://tass.com/science/1354307?utm_source=google.com&utm_medium=organic&utm_campaign=google.com&utm_referrer=google.com

[29] https://www.npr.org/2023/02/21/1158409905/russia-space-station-crew-stranded-rescue-nasa-soyuz