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’). These 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.
Satellite mega-constellations, which consist of hundreds to tens of thousands of satellites, are being rapidly constructed. Their sheer size in numbers has brought many unforeseen consequences, including impacts on astronomy, complicating orbital debris mitigation and prevention, and presenting risks to Earth’s atmosphere and on Earth’s surface. Unfortunately, existing international space treaties, as well as national and international satellite licensing and regulatory regimes, fail to adequately consider their impacts.
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. 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, new satellite mega-constellation projects will add tens of thousands of satellites to LEO. Aspects of their design and scale present a series of potential risks to LEO, Earth’s atmosphere and on Earth’s surface. 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.
The aforementioned raises many questions: 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.