Who will own the mineral and energy resources, once they are ready for human use? International laws need to be updated
Opinion: Are current laws ready for the second space race?
International space law needs a significant overhaul to stay abreast of developments in space exploration. As this arena gets busier, more crowded and competitive, current legislation risks being left behind.
The Outer Space Treaty (OST), a product of the United Nations Office for Outer Space Affairs, became law in 1967, 10 years after the Soviet Union put the world’s first man-made satellite, Sputnik, into orbit.
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The OST is a direct reflection of the space race between the USA and the Soviet Union that started with Sputnik.
In the 1970s as other states put satellites into orbit or went to the moon, foreshadowing a new era of multipolarity, although under Cold War conditions, the OST maintained its relevance.
The OST is still, to this day, the basis of space law: exploration and use of space is for the benefit of all countries and the province of mankind, is free for exploration and use by all states, and is not subject to national appropriation by sovereignty, occupation or other means.
According to the OST, states are responsible for national activities whether by governmental or non-governmental entities.
The private sector entered the outer space arena in a significant way at the start of this century (it has been involved terrestrially since the 1960s), heralding a new era in space exploration and flight.
Known as New Space or Space 2.0, it is of a scale and ambition that was unimaginable when a commercial satellite (Telstar) was launched in 1962.
Space 2.0 refers to all independent entrepreneurial activity based on private capital and entrepreneurial ambitions.
It is more independent, dynamic, and fluid compared with the planned space programs operated by states.
What are the targets of Space 2.0’s commercial ambition? In the short term it is the huge and ever-expanding global telecommunications industry, be it civilian or military in nature, the latter clearly linked to a state’s security interests.
Elon Musk's SpaceX, founded in 2002, already works closely with Nasa and the Pentagon.
In the long-term the target is access to minerals and energy.
The former will come from the unimaginably large reserves of the moon, Mars and asteroids, the latter from the energy provided by our own star, the Sun, trapping and transforming it into a useable form.
The technical challenge of extracting the minerals and capturing solar energy for use in space and on earth is expected one day to be solved, even if it demands extraordinary amounts of capital expenditure and decades of time.
It is with the advent of Space 2.0 that the OST of 1967 is found wanting.
Humanity and all nations will one day demand clear answers to pragmatic questions not covered by the generalities of the OST.
Who will own the mineral and energy resources, once they are ready for human use? Is it the nation state with which the commerce is linked? Will commercial organisations demand their slice of the pie, believing in a genuine free and open market and the winner takes it all?
If space is for the benefit of all mankind and is not subject to national appropriation by sovereignty, occupation or other means, will the world’s most powerful nations accept this when faced with the reality of controlling the distribution of essential minerals and solar energy?
How will the United Nations manage this? Its attempts to regulate these issues through its relevant subcommittees are at risk of being thwarted by any of the five permanent members of the UN Security Council if they perceive regulation as a threat to their own national interests.
The Artemis Accords appear to offer a route through this minefield.
Led by Nasa and signed by seven other founding member nations in 2020 (New Zealand signed up in 2021), the accords reinforce the point that space resource extraction and use can and will be conducted under the auspices of the OST.
Its signatory nations will "contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and use of space resources".
These soothing, visionary, paternalistic aims are to be welcomed with open arms but, like the OST, they miss a beat.
They do not explain how to accommodate aggressive commercial operators who sincerely believe in a free and open market, nor do they explain how to prevent a state from breaking the law when that state hits the jackpot with resource acquisition.
There is time to clarify these issues – but we must do it sooner rather than later. Space 2.0 does not need to become the Wild West 2.0. We all deserve better than that.
