The field of space law is in flux. While it rests on treaties drafted during the Cold War, new technology has opened a pandora’s box of new considerations as space travel, exploration, and mining are now closer than ever before.
A new era of accessible space travel in which private companies work together with state monopolies is expected if Elon Musk successfully launches NASA astronauts into space this weekend. But as we venture into the final frontier, what policy challenges await for our fledgling type 2 civilization?
Only Tuesday, a paper published in the Proceedings of the National Academy of Sciences called for the introduction of an ‘orbit tax’ to tackle the mass amounts of ‘space junk’ (natural and man-made debris) swirling around our low orbit at speeds of up to 22,300mph. Researchers stated that this was a quintessential example of the ‘tragedy of the commons’ — a situation in a shared-resource system where individuals, acting independently according to their own self-interest, behave contrary to the common good of all users.
So what does our next step into the great unknown look like? Will it be another tragedy of the commons? Or, will it be, in the words of Neil Armstrong, “One giant leap for mankind”?
The Outer Space Treaty, signed by 105 nations in 1967, is best described as the Magna Carta of space law, as it forms the basis of space law as we know it today. Among its signatories are countries ranging from the US to Russia to Jamaica. However, the treaty is almost more constitutional than regulatory in nature, in that its wide-bearing aspirational goals act more as a framework rather than as a defined set of rules.
Article II of the treaty for example states that celestial bodies and the Moon are “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” But, signed over half a century ago, the changing landscape of the space industry means that many are now obeying the letter rather than the spirit of the treaty’s laws.
One such development, as the SpaceX/NASA launch attests, is the growing encroachment of the private sector in what was historically an almost entirely state-led one. This opening up of space into the private sector is not to be undervalued, as some resources, rare on Earth but abundant in space, can be harvested for huge revenue. In fact, in 2018, Goldman Sachs predicted that the world’s first trillionaire would be someone who mines asteroids. However, with the existence of Article II, how much of this activity would be legal?
In regards to the Moon at least, mining is in fact not if Article VI is taken into consideration. It ensures that states are responsible for both non-governmental and governmental national activities in outer space, with non-governmental actors requiring government approval for outer-space activities, therefore in theory, ensuring a cohesive regime for all actors in space. In this case then, as space activity must be sponsored by the state, mining is a form of ‘national appropriation’ (see Article II).
That hasn’t stopped nations from going ahead and making plans anyway. In 2015, the US introduced legislation allowing US citizens and industries to “engage in the commercial exploration and exploitation of space resources.” Similar national legislations legalizing extraterrestrial appropriation of resources are now being replicated by other nations, including Luxembourg, Japan, China, India, and Russia. It seems that, despite the Outer Space Treaty arguably arguing against it, the lunar cash-grab is already in full swing.
The Trump administration is now taking this a step further. With the rumored drafting of the ‘Artemis Accords’, a US-sponsored international legal pact that aims to act as a blueprint for the future of lunar mining, cracks are beginning to reveal themselves in how the world now collectively views space.
Reported by Reuters in mid-May, the pact is named after NASA’s new Artemis Moon program, and would propose ‘safety zones’ around future Moon bases to prevent other actors from operating in close proximity. The US denies that it is doing anything territorial, with the implication being that the ‘safety zones’ are down to safety and nothing more.
In the coming weeks, the US wants to open talks with countries it sees as having “like-minded” interests in lunar mining. NASA administrator Jim Bridenstine told Reuters that the pact is for those countries which engage in “norms of behavior that we expect to see,” and it is expected that the US will negotiate the accords with space partners such as Canada, Japan, and European countries, as well as the United Arab Emirates. It looks as if ‘manifest destiny’, the 19th century belief in the US that its settlers were destined to expand across North America, did not stop at the West coast. Now, it looks like past sentimentalities are launching terrestrial rivalries into orbit.
Regardless of its US-centric nature, the entire prospect of writing a new lunar mining framework into international law “is not anything any nation can do unilaterally and still have it be legal,” Joanne Gabrynowicz, editor-in-chief emerita of the Journal of Space Law, told Reuters. However, as we have seen, when it comes to space law, it looks as though whether or not it is legal is becoming irrelevant.
With the Artemis Accords then, has the spirit of the Outer Space Treaty finally given up the ghost? It would seem so, because although a major partner with NASA and one of three initial signatories of the Outer Space Treaty, Russia will reportedly not be privy to the Artemis Accords early on.
Pentagon officials have been making a series of accusations that Russia is threatening the US in space, while giving little evidence for their words. For instance, they claimed that Russia is making “threatening” satellite maneuvers toward US spy satellites.
Aleksey Chepa, the deputy head of the Foreign Affairs Committee, stated in response that it was “a civilian satellite, which was carrying out activities needed for its own readjustment.” Regardless, for the time being, Russia is once again being blacklisted by the US.
Despite Moscow’s consistent support for the demilitarization of space, another interesting development in space law over the next 12 months means that such behavior between nations may no longer be illegal anyway. If the New START Treaty, the agreement between Moscow and Washington that puts a limit on the number of strategic weapons they can both keep, is not renewed, satellite-on-satellite combat could be made legal.
This is because the New START Treaty is one of the “last provisions that explicitly prohibits interference with national technical means of verification [NTMs],” Daniel Porras, a space security fellow at the UN Institute for Disarmament Research, said in a podcast on Tuesday. NTMs are satellites which keep an eye on the stockpile of weapons of the other party and make sure they are complying with the treaty. Following its inception in 2010, New START is due for renewal in February 2021. Russia is open to continuing it, while the US wants China to be included despite Beijing saying ‘no’ a number of times.
Fortunately, Article IV of the Outer Space Treaty prohibits the use of nuclear weapons or devices in space. Unfortunately, as we have seen, there’s probably some new way to bend those words to allow it. Only last summer, Elon Musk was touting nuking Mars, and with the continuing militarization of space following the formation of the US Space Force, it looks like Reagan’s Star Wars is back on the menu.
So, as things currently stand, it seems that another tragedy of the commons is indeed back on the cards. If we use the whole of human history as our reference point, it is difficult to believe that our territorial desires will not turn extraterritorial sometime in our future. That said, sending humans to space, be it from Baikonur or Kennedy Space Center, by the state or a private company, is still an act of tremendous human ingenuity. Let’s at least try to view its success in whatever spirit of the Outer Space Treaty is left.
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