The Legal Setting
The 1967 Outer Space Treaty (OST) has long provided a framework for international space law. Article 1 states that “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” The treaty does not address the consequences of unlimited access to Earth orbits, the most valuable of which are becoming saturated. The drafters also did not anticipate the problem of space debris and the risk of a collisional cascade among space assets, in which collisions between artificial satellites and other objects create more debris, leading to more collisions. If this occurs, the satellite population will be reduced to debris belts, severely limiting all human space activities.
Article 2 of the OST states that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation”. The OST does not directly address space resource use, and experts disagree whether the prohibition on national appropriation extends to the extraction of resources. The 1979 Moon Agreement, which would have regulated space mining under a multilateral regime, was not ratified by major stakeholders (e.g., United States, Russia, China). In 2015, the United States enacted domestic legislation according its citizens the right to possess and sell space resources, on the basis of an interpretation of international law. Luxembourg created its own legal framework in 2017, and has entered a five-year agreement with Japan to explore space commercialization. China also intends to use space resources.
The OST, written during the early years of the Cold War, could also prove inadequate for regulating private companies as they become increasingly active in space, and for meeting the associated challenge of ensuring sustainable development. For example, SpaceX completed a payload launch approximately once every three weeks in 2017 and has plans to colonize Mars. Planetary Resources, which seeks to extract water and minerals from asteroids, influenced the development of the US legislation facilitating space mining.
Questions abound: What low Earth orbit and geo-orbital slots are needed to accommodate increased space use while minimizing risk to Earth’s growing satellite population, and can these be regulated more effectively than the current International Telecommunications Union regime? Can recent guidelines on satellite design, ensuring the ability to de-orbit at the end of the equipment’s operational lifetime, be made binding under international law? What policies would help to foster commercial space use while also advancing fundamental science? Which populations of celestial bodies should be preserved for future generations?
Under current international space law, can we distinguish between the appropriation of resources “in place” and the use of resources (e.g., minerals and water) removed from their place? Can new domestic laws provide a sustainable regulatory regime for space mining and, if not, can the Outer Space Treaty be developed via state practice and reinterpretation, or through a formal renegotiation? As humankind’s relationship with celestial bodies evolves, through resource extraction and eventual colonization, will our ethical, political and legal approaches change—and if so, how?
The Outer Space Institute is a research hub for addressing these questions by an interdisciplinary team of space subject matter experts.