A Crowded Space: New Challenges for Space Law

February 28, 2023

Sallye Clark, Head of Space Law & Satellite Group, Mintz

Activity in outer space has never been busier and more crowded. How will we handle issues that arise with planetary colonization, space tourism and asteroid mining? Will the existing rules from the 1960s work in a crowded space in the 21st century?

The treaties applying to space

The treaties that regulate the use of outer space were developed over fifty years ago at the dawn of the space age. The main treaty that is the foundation of space law is the 1967 Outer Space Treaty. The Outer Space Treaty clearly and unequivocally mandated that space must be the “province of all Mankind” and that no nation could control space, the Moon or any planets. “Among the principles embodied in the Treaty are the freedom of exploration and use of space for the benefit and interest of all countries, the non-appropriation of outer space, including the Moon and other celestial bodies, and the prohibition of the deployment of nuclear weapons or other kinds of weapons of mass destruction in outer space.” (UNOOSA history of Treaties).

Several other treaties and principles support the Outer Space Treaty. These are the Declaration of Legal Principles Governing the Activities of States in Outer Space (1963), the Declaration on International Cooperation in the Exploration and Use of Outer Space (1996), the 1972 Liability Convention (a multi- national treaty that assigns liability for space objects to the launching states), the Law of the Sea (because oceans can be as inhospitable as space), the Rescue Convention (space faring nations agree to rescue and return astronauts and their ships) and the Moon Treaty (see below for further discussion). Any space related disputes that are not covered by treaties are treated as a dispute under international law.

New space industry and its implications

When these treaties were negotiated only nations, and not private companies, were assumed to be involved in space travel and thus the treaties clearly were focused on the public sector. We can all agree that our current space race has become not only dominated by commercial interests but that these commercial interests are now the main source of innovation in space. The days of slow and careful growth in government-only efforts in space are clearly over and the advent of a dominant commercial space raises new questions about oversight and accountability. With this dominance of commercial interests, how can we keep space accessible to all mankind when there are efforts to colonize the Moon and Mars, asteroid mining and an ever more expanding use of space and planetary resources?

Space law experts, students and policy makers have debated the legal aspects of using these treaties in every conceivable scenario. To date, there have been a few collisions between satellites, the last of which led to increased and improved surveillance of space objects over the last decade, but no loss of life, life threatening situations or related disasters. Basically, there have been few real world situations where space treaties have been relevant; there’s been no need to rescue stranded astronauts or resolve disputes about appropriation of resources in space.

Colonies on the Moon?

With that background, let’s start with plans for the Moon. Several countries, including the U.S. and China, are planning Moon colonies. The Moon Agreement of 19791 elaborates on the provisions of the Outer Space Treaty as they apply to the Moon and other celestial bodies. (Note that the major space faring nations of the U.S., Russia, China, Japan and India have not signed the Moon Agreement). The Moon Agreement forbids the establishment of military bases, installations and fortifications on the Moon, the testing of any type of weapons, and the conduct of military maneuvers on the Moon. But the use of military personnel for scientific research or for any other peaceful purposes on the Moon is not prohibited.

Article II of the 1967 Outer Space Treaty—which all spacefaring nations have ratified — also prohibits “any exercise of territorial sovereignty over the Moon (or indeed any other part of outer space)”. So a nation can find and extract resources like water from the Moon but it cannot reserve any specific area of the Moon for its own use and forbid others from the area; think of it as a town water supply that’s open to all and belongs to no one. The Moon can also be compared to Antarctica or the North Pole, where nations can have scientific but not military operations. (And, in fact, there is an Antarctic Treaty that expressly establishes that Antarctica will only be used for peaceful purposes and scientific research that will be shared with other nations.)

To what extent can private companies establish their own Moon bases? Can Hilton, for example, just choose a site and build a hotel on the Moon? Will these decisions be made by the United Nations? With satellite slots, the International Telecommunication Union (ITU), a UN agency, has a system where nations request a satellite position for a private company’s satellite network and basically the first request in the queue gets the slot. Would a similar approach work for claiming territory on the Moon?

To Mars and beyond

And of course colonizing the Moon seems quaint when you consider plans for Mars. You can understand why we space lawyers got very excited when we saw that SpaceX has the following terms of service in its Starlink user agreements:

Sallye Clark, Head of Space Law & Satellite Group, Mintz Activity in outer space has never been busier and more crowded. How will we handle issues that arise with planetary colonization, space tourism and asteroid mining? Will the existing rules from the 1960s work in a crowded space in the 21st century? The treaties applying…

“For services provided on Mars…the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, disputes will be settled through self- governing principles, established in good faith at the time of the Martian settlement.”

If space is the province of all mankind and has been governed by international treaties, can one company colonize and decide Mars’ sovereignty? Can SpaceX or any other space raider become the space version of the East India Company? If a private company does colonize Mars, what recourse do nations on Earth have to protect Mars for everyone else? Will it be like colonization of less developed countries on Earth, where whoever gets there first controls it? What if irreparable harm is caused to Mars by a private company’s actions?

Mining rights in space

This also raises questions about mining asteroids. Spacecraft have landed on asteroids, proving that it can be done.The materials present on an asteroid can have an estimated worth of anywhere from $80,000,000,000 to around $10,000,000,000,000,000,000 ($10 quintillion). Can any company that has the means to mine an asteroid claim it as their own? How would we handle multiple nations and private interests in a dispute over the same asteroid?

Commercial space technologies require updated policies

The UN Committee on the Peaceful Uses of Outer Space (COPUOS), which was instrumental in establishing the key space treaties discussed above, continues to work on international cooperation in space exploration and the use of space technology applications. Owing to rapid advances in space technology, the space agenda is constantly evolving. COPUOS provides a platform at the global level to monitor and discuss these developments. A working group has also been set up to develop a “Space 2030” agenda that, among other issues, stresses the importance of global governance of outer space activities.

We clearly need to establish new treaties and policies that address the issues created by an increasingly commercialized, crowded space to ensure that space really does remain the “Province of All Mankind.”

1 https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/moon- agreement.html

Sallye Clark is a space and satellite attorney at Mintz who is highly regarded for her work on complex international satellite projects. She counsels her clients on legal, trade, and market access issues, represents her clients before regulatory bodies around the globe, and develops regulatory and legislative strategies for clients. You can reach her at [email protected].