The 21st century space race is well and truly underway. This time the private companies are outstripping states and the law is being left behind.

‘I think we are at the dawn of a new era in commercial space exploration,’ says Elon Musk, the man who fired a sports car into space. To underscore his point, Musk has announced that he plans to land humans on Mars by 2026 and hopes to establish a colony of a million people there by 2050. Musk’s corporation, SpaceX, is already drafting a constitution for Mars.

When asked whether SpaceX should be drafting such a constitution, Charles Cockell, Professor of Astrobiology at the University of Edinburgh and Chair of the Earth and Space Foundation, is unequivocal. ‘No! No one should draft a Constitution for a people who do not yet exist in a society that has not yet been created,’ he says. ‘If the idea of Britain writing the US Constitution for the US of the late eighteenth century meets with disapproval, then the idea of people on Earth drawing up a Constitution for a Martian society that has not even been formed should cause even more discomfort. Martians should write Martian Constitutions.’

Frans von der Dunk, Professor of Space Law at the University of Nebraska-Lincoln, is more sanguine. ‘SpaceX can design whatever they want,’ he says, ‘whether it actually becomes a constitution for such a novelty as an “extraterrestrial State” ultimately depends on whether the international community of States, in particular as including the major spacefaring nations, will come to accept such an outcome.’

Who owns space?

The venerable Outer Space Treaty (OST) of 1967 (currently ratified by 111 countries) established space as the ‘province of all mankind’ which is ‘free for exploration and use’ by all states. It is not directly binding on individuals, but for those seeking reassurance about the ambitions of private actors concerning distant planets, the treaty says that states ‘bear international responsibility for national activities in outer space,’ including those by ‘non-governmental entities’.

As outlined by von der Dunk, under the OST, the problem initiatives like Musk’s present to the United States is whether the country ‘has to and will license SpaceX for whatever they plan to do on Mars’ and eventually ‘will allow Musk to “escape” from underneath US jurisdiction, do all of the above and create a new “State” in the first place’.

It seems that difficult questions are looming: should Earth-based societies stop attempts at self-rule by early colonisers of distant planets? And, if so, how? Would it even be possible to regulate such societies from Earth? Cockell is optimistic. ‘The Earth is (largely) a two-dimensional surface, but space presents a truly vast 3D space. Can it be policed? I suspect the answer is actually yes in places that matter (localised lunar and Martian stations) because those human communities will be highly localised and confined by extremes – they can be policed just as an Antarctic station can be.’

But, perhaps this would depend on whether such colonies, as they grew, would accept being governed by, and from, Earth and if they depended upon Earth logistically. Sustaining human life in space requires constant supplies. ‘Open space presents a huge volume in which to hide, but eventually you still need water, oxygen and food which forces you back to planetary bodies.’

Maybe these essentials could be found or produced in outer space? Some companies certainly hope so, and if they are right, such resources may eventually be under their control. However, the scientific challenges of carrying out missions to distant planets or asteroids and extracting resources are enormous.

Another factor worrying investors is the cost and the controversy over the legal ownership of any mined resources. ‘It’s not a topic that’s fundable yet,’ says Chris Lewicki, CEO of Planetary Resources. After many years of effort, Planetary Resources and Deep Space Industries, two major players in the field, recently abandoned plans for mining asteroids due to lack of finance.

Who owns the resources in space?

Even if the scientific challenges are overcome and the vast amounts of money required are forthcoming, the OST is specific. ‘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.’

This provision, however, does little to resolve the knotty issue of whether space resources themselves can ever be subject to appropriation and, indeed, how ‘appropriation’ itself should be defined.

Sidestepping the OST, a few states, including Luxembourg and the US, have now enacted laws which purport to provide their own interpretation of property rights over space resources, aiming to encourage investment. But others argue that this action undermines the principle that space belongs to humanity.

‘The UN Outer Space Treaty declares space destination to be the province of all humankind, but it doesn't preclude private stations and people developing resources,’ says Cockell. ‘Regardless, the ambiguity and argument about this is an example of how space law needs to be clarified to ensure that private industrial activity can occur.’

In the absence of specific provisions about activities like space mining, which was not envisaged at the time the treaty was negotiated, there is no international consensus. Though not all commentators agree, von der Dunk considers that mining per se would be legal under the OST. ‘That ultimately is a matter of interpretation, given that the OST and other applicable international law does not address in any straightforward manner this issue of mining celestial resources. I think the better interpretation is that it is not in contravention of international space law.’

A legal black hole?

Since the OST there have been four more international treaties covering discrete issues such as the recovery of astronauts and the registration of – and liability for – damages caused by space objects. But the last of these treaties, the Moon Agreement, dates back to 1979 and only attracted 18 states parties.

So, more than 40 years later, the law hardly seems to be keeping pace with the proliferation of scientific developments and advances in space technology, nor with how they are being used. State activity in outer space has increased dramatically, but yet more striking is the development of the private space industry (see box ‘NewSpace’).

‘Space-related activities on both private and state level are indeed progressing rapidly, also pushed by technological and scientific developments which enable an increasing range of applications in space’ says Grace Nacimiento, Chair of the IBA Space Law Committee. ‘Human space flights, the development of technologies to exploit celestial bodies, the development and actual use of vehicles to explore other planets, these are just a few examples showing the dynamics in space activities.’

And since there are a limited number of countries with national legislation covering outer space activity, it is not clear that national law alone can create the necessary coherence to advance international principles. Nacimiento has highlighted what remains to be done. ‘There is need for legislation covering private space-related activities and addressing topics such as liability, space debris, insurance, among many others,’ she says. ‘Several states already have respective national legislation in place, so this is a development to be watched carefully. The issue here may be whether it will be possible to promote uniform international rules and principles rather than unilateral national measures regulating private commercial space activities.’

Moreover, the fact that individual states have a responsibility for their nationals does not necessarily mean that sufficient control of private actors in space exists under the current legal framework. Even if states reference international law in their national legislation, how will this help when such law is itself not clearly defined? When some key space faring nations have opposing political ideologies, can international consensus ever be achieved?

The United Nations or elsewhere

As far as international oversight is concerned, the UN Committee on the Peaceful Uses of Outer Space (COPUOS) is the main forum governing the exploration and use of space. But it has failed to achieve an agreement on the interpretation of the broad concepts outlined in the OST, and legal developments since 1979 have been in the form of soft law guidelines and principles.

Perhaps multinational initiatives led by individual states, such as the recent US-sponsored Artemis Accords, signal an alternative route. These envisage a series of bilateral agreements between the US and individual countries in the context of planned future exploration of the Moon, Mars, comets and asteroids. Nacimiento thinks such initiatives could help to develop space law. ‘There is some indication that international space law may develop in a different form, meaning not necessarily within the United Nations Committee on the Peaceful Uses of Outer Space and via multilateral international treaties. The Artemis Accords signed in October 2020 are one very recent example of how space law could develop in the future.’

However, not all states support the US-led initiative and so far the Artemis accords have only been signed by eight countries. Predictably China and Russia are prominent critics, objecting in particular to a suggestion in Artemis to create ‘safety zones’ around national lunar exploration sites, arguing that this amounts to a creeping claim of sovereignty. Nacimiento concedes that the provision for such zones under Artemis ‘could be in conflict with existing international law prohibiting any form of national appropriation of celestial bodies. It remains to be seen how these Accords work in practice and if they develop into generally recognized principles of cooperation.’

Although much of Artemis reflects existing international law, its future is likely to depend on as much as law itself. The mere fact that the process is led by the US seems to have stoked the fires of competing states, with the head of Russia’s space agency dubbing it ‘too US-centric’.

Consequently, China and Russia signed an agreement this year to set up a rival system for exploration of the Moon, planning to establish a joint ‘International Lunar Research Station’. This, like the US-led effort, seeks to attract international partners.

As China-Russia cooperation increases, Russia-US cooperation is waning. For many years the International Space Station has been a beacon for international cooperation in space, notably as a forum for detente between Russia and the US. However, it will eventually be de-orbited, possibly as soon as 2024, and with its demise will go a touchstone of cooperation between historical rivals.

Clearly, events in space exploration have moved on since the 1967 OST which reduced tensions between Russia and the US. But now, with China as a significant new player, we seem to be witnessing a reignition of the space race. ‘The UN, notably its COPUOS, is still the best forum for all discussions on where the OST and the rest of the framework might need further elaboration, interpretation and implementation, comprising basically all the spacefaring nations,’ says von der Dunk.

Based on experience, are international bodies helping to reduce friction in space?

Resolving problems closer to home

‘We have seen a crash in 2009 between a US communications satellite and a Russian intelligence satellite in space,’ says Nacimiento. ‘In 2019 a Starlink satellite forced a satellite operated by the European Space Agency into an evasive maneuver to avoid a crash. Such incidents could easily provoke conflicts between states, in particular when satellites for intelligence or military uses are concerned.’

Claims under the 1972 Space Liability Convention’s fault-based liability system have proved impractical, as there are very few legally binding duties in outer space to establish fault against. As such, the Convention has never been tested in court.

And the risk escalates if not all incidents are accidental. China, India, Russia and the US have all demonstrated their anti-satellite capability by deploying anti-satellite weapons (ASATs) in space. In 2019 India created a massive cloud of space debris by using an ASAT to destroy one of its own satellites, yet faced no legal consequences.

The OST provisions on the military use of space are limited in scope, precluding only the placing in space of certain types of weapons (such as nuclear weapons or other weapons of mass destruction). The use of civilian satellites for military purposes easily evades the treaty. The OST also allows the deployment of military personnel in space for scientific or ‘other peaceful purposes’.

The general nature of the treaty’s provisions on military use has led to disputes about, for example, what constitutes ‘peaceful purposes’. The US interprets this to mean ‘non-aggressive’ while Russia’s view is that the meaning is ‘non-military’. States who favour the former interpretation point to the right to self-defence under the UN Charter to support their position.

In another significant development, NATO recently designated outer space as a new operational domain, tacitly accepting the US drive to invest in space warfare capabilities (in particular its establishment of a US Space Force as its sixth military service branch in 2019).

All of these developments are unsettling. ‘Obviously,’ says von der Dunk, 'the increasing militarisation of outer space […] (which as such is not prohibited unless it comes to the actual celestial bodies in outer space, and is not considered as such to be incompatible with the peaceful purposes concept) does at the same time increase the risk that developments might evolve into non-peaceful uses, or at least threats to the peaceful uses of outer space.’

Since 2008 China and Russia have been promoting the draft of a treaty at the UN which would ban the use of all weapons in outer space and the use or threat of force against satellites, a process known as the Prevention of an Arms Race in Outer Space. The US remains suspicious of the sponsorship, calling it a ‘diplomatic ploy by the two nations to gain a military advantage’. However, most nations seem to agree on the need for regulation, with five UN resolutions on outer space security being adopted in 2020, though all but one was rejected by the US.

Common heritage or celestial gold-rush?

In the face of these rapidly evolving developments, can the idea of the common ownership of space and its resources survive? The idea of ‘common heritage of mankind’ was first introduced in the 1960s and attempted to resolve the problem of ownership, and use, of areas of high strategic and economic value beyond the sovereign control of any state (such as Antarctica or the deep seabed). It continues to attract controversy and elude universal acceptance under international law.

But the Moon Agreement attempted to revive the concept of common heritage by including this language in its text, specifically stating in addition that resources found on the Moon were not the property of any state or non-governmental body. There is no doubt that this is a key reason why the agreement has attracted so little international support.

‘The absence of general acceptance of the Moon Agreement has to do with exactly that issue: the general opinion/impression that the elaboration of the common heritage of mankind principle […] would stifle bona fide entrepreneurial activity and thereby presumably any possible benefits for humankind from possible resources out there,’ says von der Dunk.

The Moon Agreement suggests that lunar resources be subject to ‘equitable sharing’. The idea expressed in the treaty is that an international regime should govern any exploitation of Moon resources. But this is unlikely to be attractive to investors. They doubtless feel, as do the governments who back them, that they should have the rights to all of the spoils of whatever they find.

At the end of the day, the ambiguities and contradictions of international law, regarding both sovereignty and resources in space, need to be more clearly resolved and defined by broad international agreement if the threat of future conflict is to be avoided. ‘If a nation or company lands on a planetary body and claims part of it then there is practically little that can be done other than another entity landing on that same body/location,’ says Cockell. ‘I think that this emphasises that one area of space law [where] this is a priority is agreeing on land claims in space and how that is to be adjudicated.’

Can international cooperation in outer space be promoted over nationalism and self-interest? Nacimiento, too, thinks this is the key issue. ‘This may well be the biggest challenge in space law,’ says Nacimento. ‘I believe that there is no choice but to promote international cooperation given the nature of space and celestial bodies as being universal goods.’

In the face of current international disagreement between the US on one hand and Russia and China on the other, in space as well as on Earth, cooperation presents a pressing problem. The rapid advances in space technology, and the expanding ambitions of the States and corporations which control it, make achieving a practical and sustainable level of cooperation even more urgent.

Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com