Why South Africa should not and will not sign the Artemis Accord

Published on January 27, 2023

Although most of us can agree that multilateralism refers to cooperation between at least more than two parties in order to accomplish a specific goal, it is one of those concepts that is difficult to grasp from the perspective of those who are not in favor of it especially when it is convenient.

One of the greatest diplomats from Africa, Kofi Annan was once quoted saying that “there is a certain tendency on the part of some Americans to treat the UN as multilateralism à la carte where you pick and choose where it suits you and when it does not suit you, you pull back”.

I recall many moons ago when I was in the Foreign Ministry as a State Law Adviser when we were approached by American diplomats requesting South Africa to sign the so-called Article 98 of the Rome Statute Agreements which I believe sought to undermine the Rome Statute. Article 98 Rome Statute Agreements are bilateral agreements that the US signs with different countries.

Article 98(2) Cooperation with respect to waiver of immunity and consent to surrender states that: The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

In essence, countries who sign these article 98 agreements with the US agree to not hand over or surrender Americans to the jurisdiction of the International Criminal Court (ICC).

South Africa resisted and refused to bow to US pressure to sign Article 98(2).

Just as many of us thought the Moon Agreement had taken a hit with many States refusing or disinclined to sign it, the US has been promoting its own “Artemis Accords” to further drive a wedge between States and the Moon Agreement. China and Russia have stated unequivocally that they will not sign the Artemis Accords because the US does not have the authority to establish international rules for outer space. Not every country can withstand American pressure. Brazil, Nigeria, and Rwanda signed the Artemis Accord.

The Moon Agreement governs state activities on the Moon and other celestial bodies, including orbits in the solar system other than Earth. The Moon Agreement only has eleven (11) signatories and eighteen (18) parties. The Moon’s strategic relevance is highlighted by the lack of interest shown by the Space States. For the most part, the Moon Agreement is a compilation of principles already present in other agreements, such as the Outer Space Treaty of 1967. However, the article argues that South Africa should accede to the Moon Agreement as there is more to gain from being in than from being out. South Africa should rally African countries and other developing countries to sign it. South Africa has been active in Law of the Seas negotiations pertaining to the exploration and exploitation of resources beyond areas of national jurisdiction. The same arguments put forth by the US in those negotiations are more or less the same arguments pertaining to the exploration and exploitation of resources in outer space.

South Africa is one of the few African States that has shown leadership and determination in international affairs, even in the face of adversity. South Africa has been active in promoting international regulation in areas beyond national jurisdiction pertaining to the Law of the Seas. South Africa and the other African States have defended the concept of the Common Heritage of Mankind in maritime law and should do the same in the sphere of outer space for the same reasons. Uganda, Morocco, Mozambique, Kenya, and Nigeria were more active than others here. Sadly, many states’ interests in promoting the Common Heritage of Mankind principle faded away just as a space shuttle’s fuel tank and booster rockets fade away once it reaches outer space.

When the Moon Agreement was negotiated and adopted in 1979 South Africa was still under apartheid and was not focused internationally. Since the dawn of democracy in South Africa, South Africa has been an active participant in international affairs. South Africa has not signed the Moon Agreement and among the fifty-four (54) African States, Morocco is the only country to be a State Party to the Moon Agreement.

Since the dawn of democracy in South Africa, the government has been staunchly opposed to unilateralism. In order to address issues facing the international community, South Africa has embraced multilateralism as a strategy. South Africa has also embraced multilateralism as an approach to solving challenges confronting the international community. A good example is South Africa’s opposition to unilateral sanctions by countries like the US against many countries such as Cuba and Zimbabwe. South Africa was also one of the countries that were opposed to the US invasion of Iraq and wanted the UN to lead in the effort to resolve the dispute. In this regard, South Africa plays a part in various multilateral fora, including SADC, the African Union, The Non-Aligned Movement, G77+China, G20, the Commonwealth, and the UN, championing the cause of developing countries and Africa in particular.

Article 11(7)(d) of the Moon Agreement stipulates that “The main purposes of the international regime to be established shall include: (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.”

These regulatory instruments are required to address issues such as resource extraction, planetary protection, lunar dust, and safety zones that are likely to arise. These legal documents demonstrate a desire to benefit from space activities in a peaceful, coordinated, and long-term manner. Treaties like the Moon Agreement ensure that African states align with visions of the moon that regard it as our planet’s immediate heavenly connection, worthy of respect and territorial integrity.

Africa should therefore aim to get its fair share of any future advantages from going to the moon. The African Space Strategy and Policy does not currently make any explicit mention of any intention to use lunar resources for human benefit. However, this is a policy point that will be an important part of any future space program agenda in the coming years and should be included in upcoming policy reviews. This will be a significant step forward in the commercialization of space, not only for the region but for each independent and space-faring African country to fully realize its potential in this diverse and resource-rich sector.

I hope that African countries wake up and realize that the Artemis Accord is not in their best interest but instead serves the American national interest. African countries should understand that developed countries have used them and still use them as ponds in the international affairs game of chess. They should also learn to prioritize the interests of Africa over their own narrow national interests. They should understand that those who oppose the Common Heritage of Mankind principle do not in any way have the best interest of Africa and developing countries at heart. Rather, all they want is to explore and exploit the resources for their own countries and not share them with the world, especially developing countries.

It has been extensively reported that President Trump during his time in office encouraged the US to mine the moon. Trump’s Executive Order states that the US will oppose any international effort to bar it from removing chunks of the moon, Mars, or elsewhere in space. In my opinion, the Executive Order is in direct conflict with the Moon Agreement which stipulates that “All exploration and use of celestial bodies is prohibited unless other states agree”.

President Trump stated that “Outer space is a legally and physically unique domain of human activity and the United States does not view it as a global commons.”

Finally, I believe that it is never too late to do the right thing. I also believe that African countries should bring this issue before the African Union and formulate an African position on the Artemis Accord, perhaps also a statement of encouragement for African countries to sign, ratify, or accede to the Moon Agreement, and hopefully develop a strategy to lobby other members of the G77 and China to do the same. Hopefully, the Moon Agreement will take effect and undercut what the Artemis Accord is attempting to accomplish in the long run. If history is any to go by, I believe South Africa will never sign the Artemis Accord because it contradicts everything Nelson Mandela stood for. All things considered, I firmly believe South Africa will not sign the Artemis Accord for a variety of reasons that I’ve listed in this opinion piece.

The Author

Michael Kabai

Michael Kabai LL.B (UNIN) LLM (UNISA) LLM (NWU) MBA (Regent) is a legal practitioner, adviser, and Legal and Compliance Manager at the South African National Space Agency (SANSA) in Pretoria. The views expressed in Mr. Kabai’s article are his own and do not reflect the views of SANSA.

Article picture: De_Momentz via Pixabay