When the immensely worded United Nations Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies was signed, nuclear war between major space-faring nations was at hand. With primitive satellite technology and the threat of weaponization in orbit, the world came together to agree on parameters that would prevent mass destruction. Fifty-five years later, space is an industry brimming with rockets, satellites, and the discovery of potentially habitable exoplanets. Although international space law is governed by the Outer Space Treaty, countries are acting to clarify the standards that address new concerns for technology, science, and exploitation in the outer limits. The failed treaties of the past exemplify a changing world that has set its sights on growth, moving forward in the absence of UN support to meet its need for advancement in the era of new space.
At just 17, the OST has 419 fewer articles than the Law of the Sea, perhaps because technology in 1967 waned when the treaty began, and, outside of it being designated for peaceful uses and for the good of all Earthlings, there was no need to set intricate standards for space law because technology had not taken humans off-planet yet. In the years that passed, additional treaties were introduced to require registration prior to launch, to hold nations accountable for damages their equipment might cause, and for the safe rescue of any distressed astronaut, regardless of country or creed. Now, with pending national bases on the moon and Mars, the United Nations Office of Outer Space Affairs is faced with a dilemma: make haste to form adequate law, or the space community will do it independently.
Although past attempts have been made at amplifying current statutes to include details on “the moon and other celestial bodies,” there has not been widespread international agreement on, specifically, how space will be treated today. Like in the Convention for the Law of the Sea, UNCLOS, some argue that space should be a “global commons,” as are international waters on Earth. The 1970’s-era Moon Agreement declares “that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when [it] is about to become feasible.” How nice it must have been, for underdeveloped nations, that the United Nations Committee for the Peaceful Uses of Outer Space decided to gift everyone the moon! Richer, more advanced countries with mining and space-based capabilities, however, did not agree with such rules. The United States, a wealthy capitalist sea- and space-faring nation, agreed to ratify neither the original law, UNCLOS, which bore such “all for one” language, nor its progeny, the MA, adhering solely to the OST and to its own upcoming legislations.
In 2015, and independent of the UN, the United States introduced a “controversial” Space Resource Exploration and Utilization Act, which gave US companies rights to anything they excavated. Mining, under this act, would be accessible to those who formed the industry, instead of to those grounded at home expecting a community distribution. This brazenry, reminiscent of the pre-UNCLOS Truman Proclamation in 1945, launches the United States, and whoever follows, forward into space while the United Nations stalls on philosophical discussions. Now, the 2020 NASA Artemis Accords have recruited at least seven major space states as signatories to the “Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes.” Although this agreement aims to uphold Outer Space Treaty principles, it is a not a United Nations multilateral treaty, nor does it have the cooperation of more than a handful of signatory countries. The accord calls for transparency in space operations and for international cooperation in the sharing of scientific findings, but it directs mining for gain, which, according to the OST, is not allowed. Another soon-to-be-challenged point of the Outer Space Treaty is the prohibition of nuclear weapons in orbit. Ironically, the same system that could threaten humanity is also the answer to many problems involving outer space. If an asteroid, or Near-Earth Object, suddenly appears, for example, Earth does not have international accord to use current nuclear technology to divert or destroy the inbound space rock. Also, the use of nuclear power, forbidden by the OST, is needed to reach deep space, namely Jupiter or Saturn’s moons, which may be habitable once discovery and technology advance.
Although the peaceful intentions of the United Nations Outer Space Treaty have prevented nuclear war from orbit, reserving the resources of space for the common good is a dam that may not hold for long, as exploitation becomes more imminent upon increasing discoveries that water, metal, and gas are available and are worth more than ever imagined. Also, however frivolous it may seem to engage in space territorialization, it could fall necessary if scientists’ predictions about climate change ring true, or if a NEO threatens Earth. As the late scientist Stephen Hawking warned, “I don’t think we will survive another 1,000 years without escaping beyond our fragile planet.” The expansion of space law, adapted to protect the fresh maturity of the realm, is necessary to forge new paths into the universe, spreading the doctrine of diplomacy, fairness, and good for all humankind.
“Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.” United Nations Office for Outer Space Affairs, UNOOSA.org, unoosa.org/oosa.
“The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes.” NASA.gov, nasa.gov/specials/artemis-accords.
Bederman, David J. and Chimène I. Keitner. International Law Frameworks, 4th ed., Foundation Press. 2016, pp. 178-180.
“Exoplanets.” NASA.gov, exoplanets.nasa.gov.
“Observations of Asteroid Psyche.” NASA Discovery Mission Psyche. The Planetary Science Journal.
“Proclamation 2667 of September 28, 1945 Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf.” OceanCommission.gov.
Rochester, J. Martin. Between Peril and Promise: The Politics of International Law, Sage Publications, 2nd ed., 2012, pp. 99-103.
“Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.” United Nations Office for Outer Space Affairs, UNOOSA.org, unoosa.org/oosa.
von der Dunk, Frans G. Advanced Introduction to Space Law, Edward Elgar Publishing, 2020.