The Legal Setting

Artist's Representation of Earth's Satellite Population (European Space Agency) — The signing of the Outer Space Treaty. Photo: United Nations.

The Legal Setting in Brief:

The 1967 Outer Space Treaty (OST), drafted during the start of the Cold War, serves as the primary framework for international space law. Much of the OST focuses on regulating the activity of States—the predominant Space actors at the time of its drafting. Fast forward to the present day: space sector developments are now largely driven by a fast-paced commercialized space sector (a phenomenon called ‘New Space’); new technology is enabling activities such as space mining; and unforeseen consequences of humanity’s expansion into space, such as proliferating orbital debris, are emerging. Such developments are presenting new challenges to the OST’s capacity for ensuring the sustainable development of outer space and upholding its principles as a global commons for the use and benefit of all humankind.

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 space 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).

Recent developments are raising new uncertainties and 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 followed by creating its own legal framework in 2017. Then, in 2020 President Donald Trump singed an executive order that rejects outer space as a ‘global commons’ while encouraging space mining under national regulation only. The Artemis Accords , a political document negotiated bilaterllay between the US and individual NASA partner states, took the US position further by maintaining that space mining does not constitute ‘national appropriation’ as set out in Article 2 of the OST.

The OST, written during the start of the Cold War, concentrated on governing the actions of states and could prove inadequate for regulating private companies and ensuing the sustainable development of outer space. For example, SpaceX completed 26 payload launches in 2020, 14 of which added 833 new satellites to their Starlink mega-constellation in LEO. The scale of the mega-constellation—which could reach 42,000 satellites—and aspects of its design present a series of potential risks to LEO, Earth’s atmosphere and on Earth’s surface. SpaceX also maintains the ambitious goal of eventually colonizing Mars. China and the US are both planning Moon missions within the next decade that will require the extraction and utilization of lunar resources. The US has announced that private companies will be contracted to undertake lunar resource extraction.

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 way of a transdisciplinary team of space subject matter experts. In 2020, the OSI held two international, transdisciplinary workshops that addressed major emerging outer space Challenges: orbital debris and outer space mining. The guidelines seek to guide international policy creation. You can find the policy recommendations adopted at both workshops on the documents and press page.