The Problem with Space Exploration Pt.1- A History
The gaps in space governance and how countries could exploit them in the future.
For most of human history, space has been inaccessible and remained the domain of science fiction. Since the early 1960s, with Yuri Gagarin’s journey into space, space exploration has increased drastically. There have been manned missions to the moon, rovers on Mars, probes sent beyond the edges of our solar system, permanently inhabited space stations, and thousands of satellites orbiting Earth.
Given the scale of human exploration and the possibilities for expansion, an expansive body of international law must regulate space. However, the current framework for conduct in outer space dates to the 1960s and 1970s, with landmark treaties such as the Outer-Space Treaty dating back to 1967. This begs the question of how effective the current international treaties are in prohibiting the dangerous behavior of states in outer space.
The Space Race
The current series of treaties governing international law in space were a product of their time. The first and most crucial treaty governing the conduct of states in outer space was the Outer-Space Treaty (OST) of 1967. This treaty was signed during the Cold War and, more specifically, in the context of the space race. The space race between the United States and the Soviet Union led to many technological achievements, but it was also a competition to dominate space with massive political implications. The space race was not limited to extending the limits of where humans could travel; it was also a testing ground for advanced weaponry. The rockets that launched Americans into space were the same as the nuclear-tipped ballistic missiles hidden in silos across America. The space race was meant to determine who the technologically superior country was between the United States and the Soviet Union.
The OST was meant to regulate the conduct of the space race and prevent conflict in space. This is why some key components focus on prohibiting military maneuvers and testing and deploying weapons in outer space.1 It established the critical concept that outer space was the “province of all mankind” and that there should be no barriers to accessing it, and all conduct in space should be in the spirit of peace.2 The OST was inspired by the Antarctic Treaty, drafted only ten years prior.3 These treaties are pretty similar to one another. They both deal with a de-militarized, de-nuclearized region in which sovereignty claims cannot be recognized. The fact that countries that were opposites, like the United States and the USSR, were able to come together over a shared concern is an encouraging thought. The OST means that both countries would not need to worry about nuclear weapons being deployed in space or bankrupting themselves in weapons development in a space race.
A New Era
Following the end of the Cold War and the space race, there was a renewed era of cooperation in space. Where the United States and the Soviet Union were adversaries, the Russian Federation was essential in building the International Space Station (ISS) and later ferrying astronauts to the International Space Station. 4 The ISS is the poster child of cooperation in space with five different agencies, including NASA (United States), Roscomos (Russia), JAXA (Japan), ESA (Europe), and CSA (Canada).5 New technologies like Global Position Systems (GPS), satellite internet, and communication have become integral to everyday life, especially the global economy. The last 20 years have also seen the entry of new countries into the exclusive club of space-fairing nations. India, China, and even smaller nations like the United Arab Emirates have expanded space operations. Activities range from multiple space stations like China to scientific probes to the moon and Mars, as is the case with the UAE and India.6 There is no doubt that space already plays a vital role in the everyday life of most people on Earth and that it will, of course, expand as new technologies are developed and access to space becomes cheaper and accessible to more countries.
The Treaties
Several vital treaties make up the core of international space law. The most important treaty is, of course, the Outer Space Treaty. The OST established the most fundamental rules for the conduct of states in outer space. Officially named the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. All of the articles of the OST set out important principles for conduct in outer space, but the most important are Articles 1, 2, 4, and 6.
Article 1 sets out, among other things, the fundamental principle that:
“The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”7
Article 2 states:
"Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty.”8
Article 4 sets the principle that space should be devoid of weapons of mass destruction and that military maneuvers, military installations as well as testing of any weapon on the moon or celestial bodies are forbidden.9
Article 6 is vital given the fact that it states that states party to the treaty are responsible for making sure that governmental agencies, as well as non-governmental entities, conduct themselves in accordance with the provisions of the OST.10
Multiple other treaties expand on the various articles in the OST. The Agreement on the Rescue of Astronauts, the Return of Astronauts, and Return of Objects Launched into Outer Space. This expands on the need for states to render all possible assistance to astronauts in the event of accidents, return astronauts to their home country, and return objects launched into outer space to their respective countries.11 It deals mainly with the logistics of such operations and more technical aspects, such as the party responsible for paying for rescue expenses.12
The Convention on International Liability for Damage Caused by Space Objects expands on Article 7 of the OST and the need for states to register the objects sent into space.13 This, along with the Convention on Registration of Objects Launched into Outer Space, is especially important given the massive number of satellites currently operating or deactivated in orbit. The tracking and registration of satellites are done through the United Nations of Outer Space Affairs, which also plays an essential role in promoting the peaceful use of outer space.14
The last major treaty derived from the OST is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. This sets how states should conduct themselves on the moon and other celestial bodies like Mars. It reinforces that these endeavors should be peaceful and prohibits the presence of nuclear weapons in space in a more specific context, such as on the moon or in orbit around the moon.15 It also expands on the idea set out in the OST that “The Moon and its natural resources are the common heritage of mankind.”16
All the abovementioned treaties build on the OST, signed in 1967. The Rescue Agreement was signed in 1968, the Liability Convention in 1972, the Registration Convention in 1975, and the 1979 Moon Agreement. Since then, this is the first treaty that has dealt with space in such a comprehensive fashion. The only treaty that has come close since these OST successor treaties are the Artemis Accords. This is, however, a non-binding bilateral treaty with the United States and not an international treaty done through the United Nations like the OST.
The Artemis Accords
Unlike the OST and its subsequent treaties, the Artemis Accords are spearheaded by the United States and have been viewed with some controversy, especially by China and Russia.17 These criticisms revolve around the United States’ influence in space exploration to create a favorable interpretation of the OST and Moon Agreement and gatekeeping space.18
In the first instance, the United States, through the Artemis Accords, is setting the legal groundwork to make it possible to start mining on the moon. No part of the OST and Moon Agreement explicitly prevents such action. However, the goal of the OST and Moon Agreement was to make space the common heritage of all mankind, free from claims of the sovereignty of ownership. One of the problematic parts of the Artemis Accords is that it would involve “recognition of a right to commercial space mining subject to national regulation only (i.e., no need for a new multilateral agreement), as well as the right of companies to declare “safety zones” around their operations to exclude other actors.”19 This would give companies from countries that agree to the Artemis Accords a means of circumventing the OST and Moon Agreement or at least abide by a specific US interpretation of these treaties. It is also unclear how these “safety zones” differentiate from claims of sovereignty and ownership over a specific area on the moon. Furthermore, the United States has made agreeing to the Artemis Accords a prerequisite to participating in the NASA Artemis Lunar Program.20 This means that countries that rely on the US for space exploration and technological capabilities have no choice but to sign if they are to participate in going to the moon. This is not an issue for close allies of the United States, like Canada and the United Kingdom. Still, it heightens competition with other actors like China and Russia in what should be an area of global cooperation.
The Artemis Accords were signed in 2020, and the planned lunar mission will occur by 2024. Unsurprisingly, in March 2021, the Russian Space Agency and the China National Space Administration agreed to a joint program to build a permanent lunar research base.21 Although it is unclear how the war in Ukraine will impact Russia’s ability and China’s willingness to continue this ambitious and costly project. Both China and Russia have publicly opposed the Artemis Accord, with one Russian official going so far as accusing the United States of “planning to take over other planets.”22 Not only is the United States trying to bend international law in its favor, but its approach has heightened competition with Russia, which was previously a partner in space exploration, and pushed it to ally with China. It would have been an unmatched symbol of international space cooperation if, after decades of confrontation, the United States and Russia had put the first Russian cosmonaut on the moon together. Instead, another space race could be underway with the goal of exploiting the moon's resources. However, with the current war in Ukraine, Russia and the United States cooperating on any issue seems very unlikely for the foreseeable future.
In part 2 of this series, we will look at the current challenges faced by international space law and see how it has failed to address issues like militarization, commercialization, and excluded developing countries.
This article was initially written as an essay as part of the author’s studies at the Munk School of Global Affairs in 2021 and has since been updated and revised.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en.
Anette Froehlich, ed., “A Fresh View on the Outer Space Treaty,” Studies in Space Policy 13 (2018), https://doi.org/10.1007/978-3-319-70434-0, 34.
Ibid. 61.
Pavel Luzin, “Prospects for Future US-Russia Space Cooperation,” Jamestown (The Jamestown Foundation, June 22, 2020), https://jamestown.org/program/prospects-for-future-us-russia-space-cooperation/
“About the International Space Station,” Canadian Space Agency (Government of Canada, November 18, 2019), https://www.asc-csa.gc.ca/eng/iss/about.asp.
“Data From Hope,” Home | Emirates Mars Mission (UAE Space Agency), accessed April 14, 2021, https://www.emiratesmarsmission.ae/.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en, 4.
Ibid.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en, 5.
Ibid.
Ibid 10.
Ibid.
Ibid 14.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en, 25.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en, 30.
Ibid, 35.
Elliot Ji, Michael B Cerny, and Raphael J Piliero, “What Does China Think About NASA's Artemis Accords?” The Diplomat (The Diplomat, September 17, 2020), https://thediplomat.com/2020/09/what-does-china-think-about-nasas-artemis-accords/.
Aaron Boley and Michael Byers, “U.S. Policy Puts the Safe Development of Space at Risk,” Science 370, no. 6513 (August 2020): pp. 174-175, https://doi.org/10.1126/science.abd3402, 174.
Aaron Boley and Michael Byers, “U.S. Policy Puts the Safe Development of Space at Risk,” Science 370, no. 6513 (August 2020): pp. 174-175, https://doi.org/10.1126/science.abd3402, 174.
Ibid.
Namrata Goswami, “The Strategic Implications of the China-Russia Lunar Base Cooperation Agreement,” The Diplomat (The Diplomat, March 19, 2021), https://thediplomat.com/2021/03/the-strategic-implications-of-the-china-russia-lunar-base-cooperation-agreement/.
Namrata Goswami, “The Strategic Implications of the China-Russia Lunar Base Cooperation Agreement,” The Diplomat (The Diplomat, March 19, 2021), https://thediplomat.com/2021/03/the-strategic-implications-of-the-china-russia-lunar-base-cooperation-agreement/.