The field of space law is in flux. While based on contracts drawn up during the Cold War, the new technology has opened a Pandora with new considerations as space travel, exploration, and mining are now closer than ever.
A new era of accessible space travel, in which private companies work with state monopolies, is expected when Elon Musk successfully launches NASA astronauts this weekend. But what political challenges will our young Type 2 civilization face if we venture to the last frontier?
It was only on Tuesday that a paper published in the Proceedings of the National Academy of Sciences called for the introduction of an “orbit tax” to combat the masses of “space debris”
What is our next step into the great unknown? Will it be another community tragedy? Or will it be in Neil Armstrong’s words “A big step for humanity”?
The space treaty, signed by 105 nations in 1967, can best be described as the Magna Carta of space law because it forms the basis of space law as we know it today. Signatories include countries from the United States to Russia to Jamaica. However, the contract is almost constitutional rather than regulatory in nature, since its far-reaching objectives serve more as a framework than as a defined set of rules.
For example, Article II of the Treaty states that there are celestial bodies and the moon “Not subject to national appropriation through sovereignty, use or occupation, or otherwise.” But signed over half a century ago, the changing landscape of the space industry means that many are now obeying the letter rather than the spirit of contract law.
Such a development, as the launch of SpaceX / NASA confirms, is the increasing intervention of the private sector in a historically almost exclusively state-run sector. This opening of space to the private sector should not be underestimated, since some resources that are rare on earth but abundant in space can be harvested for enormous income. In fact, Goldman Sachs predicted in 2018 that the world’s first billionaire would be someone who mines asteroids. How much of this activity would be legal if Article II was present?
In fact, at least with regard to the moon, mining is not if Article VI is taken into account. It ensures that states are responsible for both non-governmental and governmental national activities in space, with non-state actors requiring government approval for space activities, and thus theoretically ensuring a coherent regime for all actors in space. In this case, mining is a form of “national appropriation” because the state must promote space activity (see Article II).
That didn’t stop the nations from making plans anyway. In 2015, the U.S. introduced laws that allow U.S. citizens and industries “Engage in the commercial exploration and exploitation of space resources.” Similar national laws that legalize the extraterrestrial appropriation of resources are now being repeated by other nations, including Luxembourg, Japan, China, India, and Russia. It seems that despite the space treaty arguing against it, the money robbery on the moon is already in full swing.
The Trump administration is now going one step further. With the alleged drafting of the “Artemis Agreement”, an international legal pact sponsored by the USA, which is intended to serve as a blueprint for the future of moon mining, cracks are beginning to show in how the world now views space collectively.
The pact, reported by Reuters in mid-May, is named after NASA’s new Artemis Moon program and would suggest safety zones around future lunar bases to prevent other actors from operating in close proximity. The United States denies that it is taking territorial action, which implies that the “security zones” are subject to security and nothing more.
In the coming weeks, the US wants to start talks with countries that it thinks are possible “Like-minded” Interests in lunar mining. NASA administrator Jim Bridenstine told Reuters that the pact applies to those countries that are committed “Norms of behavior that we expect to see” and the US is expected to negotiate agreements with space partners such as Canada, Japan and European countries, as well as the United Arab Emirates. It looks like the “obvious fate”, the nineteenth-century belief in the United States that its settlers were destined to expand across North America, did not stop on the west coast. Now it looks like past sentimentalities are bringing terrestrial rivalries into orbit.
Regardless of its U.S.-centered nature, there is overall prospect of incorporating a new moon-mining framework into international law “Isn’t something a nation can do unilaterally and still make it legal” Joanne Gabrynowicz, editor-in-chief of the Journal of Space Law, told Reuters. However, as we saw, it doesn’t matter in space law whether it’s legal or not.
Has the spirit of the space treaty with the Artemis agreements finally given up the spirit? It seems so, because although Russia is an important partner of NASA and one of the first three signatories to the space treaty, it is reported that it will not be early on in the Artemis agreements.
Pentagon officials have made a number of allegations that Russia is threatening the United States in space while providing little evidence to support their words. For example, they claimed that Russia does “threatening” Satellite maneuvers towards US spy satellites.
Aleksey Chepa, vice-chair of the Foreign Affairs Committee, then said that this was the case “A civilian satellite that performed activities that required its own customization.” Irrespective of this, Russia will once again be blacklisted by the USA for the time being.
Despite Moscow’s consistent support for the demilitarization of space, another interesting development of space law over the next 12 months means that such behavior between nations is no longer illegal. If the new START contract, the Moscow-Washington agreement, which limits the number of strategic weapons that both can hold, is not renewed, a satellite-to-satellite battle could be legalized.
This is because the new START contract is one of the “Final provisions that explicitly prohibit interference with national technical inspection means [NTMs], ” Daniel Porras, a fellow in space security at the UN Institute for Disarmament Research, said in a podcast on Tuesday. NTMs are satellites that keep an eye on the other party’s weapons supply and ensure that they comply with the contract. After its launch in 2010, New START is expected to be renewed in February 2021. Russia is open to continue, while the US wants China to be included, although Beijing repeatedly says “no”.
Fortunately, Article IV of the Space Treaty prohibits the use of nuclear weapons or devices in space. Unfortunately, as we have seen, there is probably a new way to bend these words to make this possible. It wasn’t until last summer that Elon Musk campaigned to destroy Mars, and with the advancing militarization of space after the formation of the US Space Force, Reagan’s Star Wars appears to be on the menu again.
As it stands now, another community tragedy does indeed appear to be on the agenda again. If we use all of human history as a point of reference, it is hard to believe that our territorial desires will not become extraterritorial at some point in our future. That said, sending people into space, whether from the state or a private company from Baikonur or the Kennedy Space Center, is still an act of enormous human ingenuity. Let us at least try to see its success in the spirit of the space treaty that is left.
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