Due Regard, Harmful Interference, and Private Space Actors

But what do “due regard” and “harmful interference,” as used in Outer Space Treaty Article IX and incorporated by the Artemis Accords, mean? A June 14, 2024, SciTech webinar revealed that a 90-minute webinar was simply insufficient time to examine, analyze, and discuss the plethora of considerations, perspectives, and scenarios associated with the meaning and application of the two concepts in the context of space or lunar activities. While many interesting nuggets emerged from the webinar, this article looks into just one—the obligations and duties of private space actors to exercise due regard and avoid harmful interference, whether potential or intentional, especially since “due regard” and “harmful interference” are undefined in Article IX of the Outer Space Treaty.

Due Regard and Harmful Interference

Outer Space Treaty Article IX, in relevant part, provides that “[i]n the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall . . . conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.” Article IX provides two circumstances for when the harmful interference principle applies: when a state “has reason to believe” that a space activity or experiment planned by it or its nationals would cause potentially harmful interference with another state’s peaceful exploration or use of space and when a state “has reason to believe” that a space activity or experiment by another state would cause potentially harmful interference with any state’s peaceful exploration or use of space.

The Artemis Accords commit signatory states to “acknowledge and reaffirm their commitment to the Outer Space Treaty, including those provisions relating to due regard and harmful interference.” It then provides that “[c]onsistent with Article IX of the Outer Space Treaty, a Signatory authorizing an activity under these Accords commits to respect the principle of due regard.” The reference to due regard in § 11(1) and (3) are the only references to that principle in the Artemis Accords. By contrast, in addition to § 11(1), the Accords make numerous other references to “harmful interference.” Regarding harmful interference, in summary, § 11’s relevant provisions shows that signatory states commit to refraining from engaging in any intentional action that may create harmful interferencewith another signatory state’s space activities conducted pursuant to the Accords; providing other signatory states with necessary information regarding the location and nature of its space-based activities under the Accords if that state reasonably believes that the activities of other signatory states may result inharmful interferencewith or pose a safety hazard to its space-based activities; using its experience under the Accords to contribute to multilateral efforts to assist in developing international practices, criteria, and rules applicable to the definition and determination of safety zones and harmful interference; providing notification of space activities and committing to coordinating with other actors to avoid harmful interference (the area subject to such notification and coordination will be known as a “safety zone,”which is implemented to avoid harmful interference; a safety zone should encompass the area in which nominal operations of an activity or an anomalous event could reasonably cause harmful interference);creating, operating, or ending a safety zone in a manner that protects the personnel, equipment, and operations of other actors from harmful interference; and respecting reasonable safety zones of other actors to avoid harmful interferencewith their operations under the Accords.

Section 11(3) provides that when a signatory state believes “that it may suffer, or has suffered, harmful interference,” it may request consultations with a signatory state or any other party to the Outer Space Treaty that authorizes the activity. While the Artemis Accords expressly incorporate Outer Space Treaty Article IX and its due regard principle and duty to avoid potential harmful interference, from the Accords’ minimal mention of due regard but numerous references to harmful interference, one can only conclude that the Accords are more concerned with harmful interference rather than the due regard principle.

The Outer Space Treaty does not define the terms “due regard” and “harmful interference.” Likewise, the Artemis Accords are silent on what these terms mean. Thus, the meaning of the terms and how they may apply are subject to interpretation.

International Law and Private Space Actors

International law rarely imposes direct legal restraints on private individuals as it primarily concerns itself with state practices. A private actor is subject to international law only when rights and duties are attributed directly to the individual and not indirectly through the medium of states. This rarely occurs, as conduct or activity of private persons will rarely be a matter of legal concern among states. The Outer Space Treaty is no exception to this paradigm.

The Outer Space Treaty imposes duties, responsibilities, and obligations on states and not private individuals. Indeed, as noted in the plain language of Article IX as quoted above, and as aptly noted during the webinar discussion, the due regard principle and avoidance of potential harmful interference exist only between and among states. Article IX does not require or mandate that private space actors conduct their space activities with “due regard” for any space actor or avoid harmful interference of any kind. Similarly, the Artemis Accords’ duties, obligations, and commitments apply directly only to signatory states and not to private space actors. Section 1 expressly and unambiguously provides that the Accords’ principles “are intended to apply to civil space activities conducted by the civil space agencies of each Signatory.” However, consistent with international law, the Outer Space Treaty and the Accords indirectly impose the due regard principle as well as the duty to avoid harmful interference on private actors through the medium of states.

The Outer Space Treaty, Artemis Accords, and Private Space Actors

The Outer Space Treaty does obligate states to supervise their nationals’ space activities to assure that they conduct themselves in conformity with the treaty provisions. Outer Space Treaty Article VI provides that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, . . . and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” Article VI clarifies that the term “nationals” includes nongovernmental entities. Hence, each state bears the international responsibility to supervise the space activities of a national even if the national is aboard a spacecraft or in an extraterrestrial installation registered to another state or launched by another state.

Supervision of a private space actor’s space activity is not limited to the actor’s state of nationality. Pursuant to Outer Space Treaty Article VIII, the registry state of a space object retains jurisdiction and control “over any personnel” onboard the vehicle “while in outer space or on a celestial body.” Even more so, Article VI mandatesthat “[t]he activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” The Outer Space Treaty does not define the term “appropriate State” as used in Article VI. Thus,it seems that if any state deems itself to be the “appropriate State” to authorize and supervise the space activity of a nongovernmental entity or private actor, even though the state is not a launching state, registry state, or state of nationality for a private space actor, then a legal basis may exist for that state to do so. This is particularly so given that the ordinary meaning of “appropriate” is “correct or right for a situation or occasion” or “suitable or fitting for a particular purpose, person, occasion, etc.”

Like the Outer Space Treaty, the Artemis Accords also indirectly extend to private space actors through the medium of states. Section 1 obligates the signatory states to implement the principles set out in the Accords “by taking, as appropriate, measures such as mission planning and contractual mechanisms with entities acting on their behalf.” More on point, though, is § 2(1)(d) which requires signatory states to commit “to taking appropriate steps to ensure that entities acting on its behalf comply with the principles of these Accords.”

This delegation to states of the duty to supervise or regulate private space actors pursuant to domestic state law is, as acknowledged by the webinar discussion, one of the complex circumstances flowing from the absence of definitions for due regard and harmful interference in the space domain. Even more so, as the due regard principle applies to the “corresponding interests” of another state, there is no definition of the term “corresponding interests.” This implies that due regard is not limited to a state’s space activities but can be extended to cover a state’s national security interests as well as other domestic or sovereign interests.

Due Regard, Potential Harmful Interference, and Private Space Actors

National laws serve to regulate and supervise private space actors. However, the lack of definitions at the international level means there is not an underlying guiding principle for determiningwhat constitutes due regard and harmful interference for space activities other than those relating to the use of radio frequencies. This presents a complex situation.

The use of telecommunications frequencies is an exception as the International Telecommunications Union (ITU), in its Constitution, Convention, and Radio Regulations, establishes parameters for states’ use of telecommunications frequencies. ITU Constitution Article 45(3) instructs states to “recognize the necessity of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications” of others, while Constitution Article 45(1) expressly obligates states to establish and operate all telecommunication and other stations “in such a manner as not to cause harmful interference to the radio services or communications of other Member States.” Article 1 of the ITU Radio Regulations define “harmful interference” as “[i]nterference which endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with Radio Regulations.” Furthermore, Article 1 defines a “space radiocommunication” as “[a]ny radiocommunication involving the use of one or more space stations or the use of one or more reflecting satellites or other objects in space.” This ITU framework provides guidance for what, at a minimum, constitutes due regard and harmful interference of space telecommunication activity. It also provides guidance for states to implement laws and procedures that assure and ensure that private space actors subject to their supervision exercise due regard and avoid harmful interference, whether potential or actual, in the use of telecommunications in space activities.

Other areas of space activities lack this underlying international framework to supervise or govern due regard and avoid harmful interference. As a result, to comply with their responsibilityto supervise private space actors, states are left to implement laws and procedures that reflect their own national vision of what constitutes due regard and harmful interference. This will, in alllikelihood, lead to a hodgepodge of diverse national laws and regulations. Hopefully, experience, practice, and the convergence of mutual state interests will lead to some form of harmonization among states as to what constitutes due regard, corresponding interests,and harmful interference in space activities other than telecommunications. Until such harmonization emerges, if ever, whether the commercial lunar and/or space activities of private actors in areas other than telecommunications—such as extraction and in situuse of abiotic resource extraction, landing and launching zones, installations and habitats, and scientific experiments—comply with Outer Space Treaty Article IX will apparently be subject to trialand error or what constitutes the perceived best practice based on the available information regarding thespace activities and corresponding interests of states other than the privateactor’s state of nationality and registry state. The Artemis Accords appear to endorse this approach, as Section 10(4) anticipates that the signatories “intend to use their experienceunder the Accords to contribute to multilateral efforts to further develop international practices and rulesapplicable to the extraction and utilization of space resources,including through ongoing efforts at the COPUOS.” Similarly, Section 11(6) recognizes the signatories’ intent “touse their experience under the Accords to contribute to multilateral effortsto further develop internationalpractices, criteria, and rulesapplicable to the definition and determination of safety zones and harmful interference.”

Due Regard, Potential Harmful Interference, and Information Sharing

The development of the “rules of the road” based on experience or the practice of trial and error will not occur in a vacuum. Instead, decisions on how to conduct space activities, taking into consideration due regard and the avoidance of potential harmful interference, will necessitate information sharing by states. Fortunately, the Outer Space Treaty and the Artemis Accords recognize the significance of information sharing, but both are deficient with respect to the timing and content of information that bears on due regard and the avoidance of potential harmful interference.

Outer Space Treaty Article XI acknowledges that state disclosure of information about its space activities is necessary “[i]n order to promote international cooperation in the peaceful exploration and use of outer space.” Pursuant to Article XI, a state agrees to report “to the greatest extent feasible and practicable” the nature, conduct, locations, and results of its space activities. An Article XI disclosure is made to the U.N. Secretary-General, “as well as the general public and the international scientific community.” Upon any disclosure, the Secretary-General has the duty to disseminate the disclosed information “immediately and effectively.”

In essence, Article XI’s information disclosure is mostly illusionary or, at best, subjective and arbitrary. There is no time frame for a state to disclose any information under Article XI. As well, the duty to disclose rests with a state deciding whether it is feasible and practical to disclose or share information. Thus, if a state determines that it is neither feasible nor practicable to disclose information concerning any aspect of its space activities, then it is not obligated to do so under Article XI. Furthermore, there is not any standard or guidance on how a state evaluates whether it is feasible and practicable to share information concerning its space activities.

Like Article XI, the Artemis Accords provide for discretionary disclosure or sharing of information concerning space activities. Section 4 of the Artemis Accords commits the signatories “to transparency in the broad dissemination of information regarding their national state policies and space exploration plans in accordance with their national rules and regulations.” It then obligates the Signatories to “plan to share” scientific information resulting from their lunar activities to the public and the international scientific community “on a good faith basis, and consistent with Article XI of the Outer Space Treaty.”

Artemis Accords Section 8(1) acknowledges that signatories “retain the right to communicate and r elease information to the public” concerning their own lunar activities but will refrain from publicly disclosing information relating to another signatories’ lunar activities except upon coordination with the other signatory “in order to provide appropriate protection for any proprietary and/or export controlled-information.”

Finally, Section 11 allows for the establishment of areas called “safety zones” to mitigate harmful interference in lunar activities. The safety zone provisions set forth porous commitments of its signatories to information sharing to effectuate due regard and avoid harmful interference. In § 11(5) the signatories commit to provide each other with necessary information relating to location and nature of space-based activities under these Accords, but only if “a Signatory has reason to believe that the other Signatories’ activities may result in harmful interference with or pose a safety hazard to its space-based activities.” Section 11(7) acknowledges that Signatories “intend to provide notification of their activities and commit to coordinating with any relevant actor to avoid harmful interference.” Lastly,§ 11(9) suggests that signatories “should, as appropriate,” disclose relevant information regarding their safety zones “to the publicas soon as practicable and feasible, while taking into account appropriate protections for proprietary and export-controlled information.” Section 11(9) also indicates that relevant information includes “the extent and general nature” of the state’s operations.

While the Artemis Accords envision the disclosure of some information, the sharing only applies to signatories. If a state is not a signatory, then the Accords exclude such state from any of its information-sharing provisions that concern anticipated or ongoing lunar activities. Thus, the Artemis Accords is not an inclusive platform as it does not concern itself with exercising due regard and avoiding harmful interference with lunar activities of states that are not signatories. This suggests that private space actors of signatory states to the Artemis Accords can share and exchange information concerning lunar activities with a non–signatory state only as allowed by its state of nationality and/or state that has jurisdiction and control over its lunar activities.

The Need for an Orderly Framework for Conducting Space or Lunar Activities

The concepts of due regard and avoidance of potential harmful interference as employed by Outer Space Treaty Article IX apply only to states. Private space actors must comply with those principles only as mandated by the national laws of a state that has jurisdiction and control over the private actor’s space activities. Other than telecommunications, there is a dearth of guidance as to what may constitute due regard for corresponding interests and potential harmful interference for purposes of Article IX. Hence, a private space actor must rely on the rules and guidelines adopted by the state or states that have jurisdiction and control over its space activities. This “hodgepodge” of laws and regulations is not necessarily stable as they can become subject to the whims and winds of terrestrial politics and international relations, rather than the need for an orderly framework for conducting space or lunar activities.

It has been suggested that an international agency shielded from overt political turbulence, like the ITU, offers the best foundation for negotiating and establishing common and uniform “international rules of the road” as well as standards and practices for assuring that private space actors, as well as state actors, conduct their space and lunar activities in conformity with the concepts of due regard and avoidance of harmful interference. SciTech’s webinar makes it quite clear that the emergence of such a framework is not on a foreseeable horizon. Accordingly, until the international community reaches such a threshold, private space actors may have to simultaneously “dance” to different tunes, to ensure that their activities are not conducted in a manner that may cause a foreign state to declare itself the “appropriate State” under Outer Space Treaty Article VI to “supervise” all or certain parts of the private actor’s space or lunar activities. Such exercise of Article VI’s supervisory power could be premised on a claim that the private space actor’s space activity is not in conformity with Article IX as it lacks due regard for the foreign state’s corresponding interests and is not structured to avoid potentially harmful interference with that state’s space activities.³²

George Anthony Long possesses an LLM in Space Law and is the managing member of Legal Parallax, LLC, a legal consultancy company. He specializes in international and domestic space law and policy and United States territorial law. He is currently the Chair of the ABA Science & Technology Law Section’s Space Law Committee and a Vice-Chair of the Artificial Intelligence and Robotics Committee.