The Problem with Space Exploration Part 2 - Keeping Up With The Times
The gaps in space governance and how countries could exploit them in the future.
The following article is part 2 of a series that discusses the current body of international law that governs the conduct of countries in outer space and how this body of international law addresses issues of militarization, commercialization, and the participation of the developing world in space.
Part 1 is available on Maple Watch
With the current expansion of space activities, especially commercial and military activities, it is still unclear whether the current framework of international law will be able to address the concerns about the exploitation of space. President Trump announced in 2019 that a new branch of the United States military, Space Force, would be created.1 Other countries like Russia, China, and France have space forces tailored to operate in outer space. Not only are countries increasing their activities in space, but so are private companies. Space has become more and more accessible for countries and companies, yet international space law has not changed since the 1980s. This increase in the exploration and exploitation of space will test the limits of the current framework of international space law.
The Developing World and Space
Part one of this series focused mainly on the efforts of a select few countries in space, notably Russia and the United States. The history of space exploration and international space law has left out many countries. There are massive financial barriers to becoming a space-fairing country. Sending satellites into space, something the US has been able to do since the 1950s requires immense technological capabilities and investment, which, even in 2024, few countries possess. Greater access to space for developing countries could have a tremendous positive impact in several different areas. Improvements in agriculture, disaster management, climate forecasting, and even internet access are only some of the benefits that developing countries could gain with greater access to space resources like satellites and the data they gather.2
Many developing countries were in their infancy when the frameworks for international space law were established in 1967 with treaties like the Outer Space Treaty. The first article of the OST states that the use of space “be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.”3 It isn’t easy to see how the major space powers live up to this ideal. From a developing country’s perspective, their lack of participation in space diminishes the claim that access to space should be for all humanity. Multiple African countries have established space agencies or research institutions focused on space, and as of June 2023, that number stands at twenty African states.4 Fifteen of these countries have launched satellites into space, with the help of countries like Japan, the United States, and China.5 For comparison, since 1998 (25 years), all of Africa has combined to launch 58 satellites.6 In 2023 alone, China launched 67 rockets, which combined to deploy nearly 200 satellites into orbit.7 SpaceX launched 96 successful missions with hundreds of satellites launched into orbit in 2023.8 When the OST was envisioned, it was meant to regulate the competition between the superpowers by limiting the scope of actions that could take place in space. There was no mention of how to make space more accessible to all countries, ensure all countries cooperate, and distribute the benefits of space exploration more evenly.
Perhaps the only example of developed countries taking steps to make space more accessible is that of the Global Positioning System (GPS). In the 1970s, the United States military developed GPS, which enabled real-time and highly accurate location data using satellites. This secretive military technology was developed at a significant cost. Estimates put the program's total cost in the tens of billions of dollars.9 In 1983, US President Ronald Reagan made GPS available to everyone.10 This allowed individuals and businesses to access a multi-billion-dollar satellite network by purchasing a relatively low-cost GPS-enabled device. From tracking endangered species in the wild and time synchronization to massive improvements in transit, GPS has revolutionized international trade and business and remains freely accessible to anyone on Earth.
This also points to another issue, which is the over-utilization of space. There needs to be more provisions to prevent the overutilization of space. Space debris is a serious issue. Of the thousands of satellites, only a handful are from developing countries. If they are to become growing actors in space, they will be entering an overcrowded environment. Not only does the technological nature and cost of space travel make it extremely difficult for developing countries, but international space law, despite claiming to promote greater access to space and that “the use and space exploration must be to the benefit of all people,” has focused on preventing competition instead of fostering collaboration.
Militarization of Space
The militarization of space is a dangerous possibility. Technology in the 21st century means that the entire world economy relies on satellites for everyday activities. The 21st century has resulted in tremendous leaps in military technology. Multiple countries have demonstrated the ability to destroy satellites in orbit from the ground. China, India, the United States, and Russia have all conducted these tests.11 These tests are dangerous, and the debris caused by destroying satellites in orbit can damage other vital satellites. At first glance, these actions seem to go against the “peaceful” use of outer space. However, the current language of the Outer Space Treaty (OST) does not explicitly prohibit this specific type of action. It is not an aggressive action, and all the tests involved destroying satellites that were the property of the state conducting the test. The interpretation of “peaceful purposes” is generally accepted (at least by the United States) to mean “non-military” rather than “nonaggressive.”12 There is also the very precise wording of Article 4 of the OST, which states, “The establishment of military bases, installations, and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.”13 The treaty only specifies this behavior is prohibited on celestial bodies. This presents a gap where it could be argued under the current treaties that testing weapons, at least non-nuclear ones, would be illegal on the Moon or other celestial bodies but completely legal in the void between these bodies. This leaves states free to conduct potentially dangerous weapons tests and further the ongoing arms race in space by improving their capabilities without legal repercussions.
In the past ten years, the growing militarization of space has caused the major space powers to make space a military priority. In 2015, the Chinese People’s Liberation Army created a new branch of its military, the Strategic Support Force, dedicated to space and cyber warfare.14 Russia soon followed suit with a specialized space force, and as of 2021, the United States and France created dedicated military branches focused on space.15 The United States has even explicitly stated it wants to establish “space superiority.”16 The development of new technologies like anti-satellite weapons and cyber-warfare can indiscriminately cripple infrastructure that is used around the world. The militarization of space is ongoing, and the current legal regime does not adequately prevent states from developing more space-based weapons. This is due to the lack of explicit language preventing the deployment of weapons in space beyond nuclear weapons and weapons of mass destruction. Furthermore, countries like the United States, China, and Russia continue competing in space, leading to escalation and further straying from the OST ideals of peaceful cooperation in space.
Commercialization of Space
So far, exploring space and other celestial bodies has been limited to scientific exploration. The crewed Apollo missions and the numerous uncrewed missions to the Moon, Mars, and asteroids have been focused on scientific research. There has also been growing commercialization of space, with more and more private companies deploying satellites for various uses. The most notable is SpaceX, which has numerous endeavors such as crewed missions to Mars and creating a massive network of internet satellites in orbit. The Starlink program alone has received permission from the U.S. Federal Communications Commission (FCC) to put 12,000 satellites into space. For context, this would involve launching more satellites than have ever been launched to date. There is concern that this would overcrowd the earth’s orbit, increasing the risk of accidents and possibly even ruin the night sky with thousands of bright satellites.17 The OST deals very little with the conduct of private companies. It only states that states are responsible for ensuring that private companies act according to the OST.18 There are concerns over the use of orbits around Earth and the conduct of companies on celestial bodies like the Moon, Mars, and asteroids. Currently, the OST and successor treaties do not deal with how mining or resource extraction should occur on these celestial bodies.19 This leaves a grey area where countries do not have sovereignty over the territory in space or ownership of the land, yet they can still extract resources and profit from them. The Artemis Accords, a bilateral space cooperation treaty that the US made to regulate how the US will cooperate with other countries on the moon, interprets that the countries or companies would own the resources. This would leave the space mining economy dominated by the few countries capable of accessing these celestial bodies. These two examples of satellite orbits and space mining show there is very little international law regarding the sustainable use of space and its resources.20 This means there is a genuine potential for space to become yet another tragedy of the commons, just like the oceans on Earth.
Conclusion
In conclusion, space is a fascinating area that is central to technological innovation and geopolitics. The fast pace of change and the emergence of disruptive new technologies have made it very hard for international law to adapt and address present and future problems. The treaties that followed the Outer Space Treaty set an important precedent with key concepts such as the Moon and celestial bodies being the common heritage of humanity. Ambitious goals for space exploration to be only used for peaceful purposes and that it should be free from weapons of mass destruction were implemented in the context of the Cold War between two rival superpowers. Despite the success of international space law, it excluded countries, especially developing countries, from receiving the benefits of space. The most crucial way is that there have been no provisions for the sustainable exploitation of space. This means that even if developing countries reach the level of technological know-how to launch satellites, they will have to contend with an overcrowded and hazardous atmosphere of satellites.
This also has implications for mining in space and the unfortunate possibility that celestial bodies could be stripped of resources by the wealthiest countries. This makes developing countries dependent on the support of developed nations, especially the United States, for access to space. Another subject that challenges the international laws on space is the militarization of space. There is a lack of clarity on what military actions can occur in space and what constitutes “peaceful purposes.” Given that space and space infrastructure has become such an essential part of the global economy and beyond, it is vital to regulate the conduct of nations in space further to ensure it does not become a battlefield. There has been intense competition between the space powers, especially between the big three: China, the United States, and Russia. The OST and successor treaties were meant to promote cooperation in space and limit competition, and they have failed to do so in the 21st Century. The United States has used treaties such as the Artemis Accords to promote a narrow interpretation of space law that benefits the United States and makes other states reliant on them for access to the future benefits of space exploration. Space will continue to play an increasingly important part in everyday life for everyone on Earth, and future endeavors in space and the laws surrounding space need to be inclusive and forward-looking.
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.
Merrit Kennedy, “Trump Created the Space FORCE. Here's What It Will Actually Do,” December 21, 2019, https://www.npr.org/2019/12/21/790492010/trump-created-the-space-force-heres-what-it-will-do.
Memme Onwudiwe and Kwame Newton, “Africa and the Artemis Accords: A Review of Space Regulations and Strategy for African Capacity Building in the New Space Economy,” New Space 9, no. 1 (January 2021): pp. 38-48, https://doi.org/10.1089/space.2020.0043, 38.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en, 4.
“List of Space Agencies in Africa.” Space in Africa, Space in Africa, 3 Jan. 2024, africanews.space/list-of-space-agencies-in-africa/.
Memme Onwudiwe and Kwame Newton, “Africa and the Artemis Accords: A Review of Space Regulations and Strategy for African Capacity Building in the New Space Economy,” New Space 9, no. 1 (January 2021): pp. 38-48, https://doi.org/10.1089/space.2020.0043, 38.
Space in Africa, Space in Africa, 1 Aug. 2023, africanews.space/african-satellites/.
Jones, Andrew. “Chinese Satellite Internet Mission Rounds off Record Year for Global Launches.” SpaceNews, 31 Dec. 2023, spacenews.com/chinese-satellite-internet-mission-rounds-off-record-year-for-global-launches/.
Sheetz, Michael. “SpaceX Sets New Rocket Record with 96 Successful Launches in 2023.” CNBC, CNBC, 29 Dec. 2023, www.cnbc.com/2023/12/29/spacex-rockets-2023-launch-record.html.
Scott Pace et al., “Opportunities Created by GPS for U.S. Defense, Commercial, and Foreign Policy Interests,” RAND Corporation, December 1, 1995, https://www.rand.org/pubs/monograph_reports/MR614.html , 237.
“History of GPS Program,” AIAA (American Institute of Aeronautics and Astronautics , 2011), https://www.aiaa.org/docs/default-source/uploadedfiles/about-aiaa/press-room/videos/iaf-60th-anniv-gps-nomination.pdf?sfvrsn=9bc64bfa_0.
“UK and US Say Russia Fired a Satellite Weapon in Space,” BBC News (BBC, July 23, 2020), https://www.bbc.com/news/world-europe-53518238.
Cheng Bin, “Part V Military Use of Outer Space, 19 Definitional Issues in Space Law: the 'Peaceful Use' of Outer Space, including the Moon and other Celestial Bodies,” Studies in International Space Law, 1997, https://doi.org/10.1093/law/9780198257301.003.0001.
UN Office for Outer Space Affairs, “Space Law Treaties and Principles,” International Space Law, 2017, https://doi.org/10.18356/72574d6c-en , 5.
Jun Nagashima, “The Militarization of Space and Its Transformation into a Warfighting Domain: List of Articles: International Information Network Analysis,” SPF (The Sasakawa Peace Foundation, July 17, 2020), https://www.spf.org/iina/en/articles/nagashima_02.html.
Ibid.
Jackson Nyamuya Maogoto and Steven Freeland, “Space Weaponization and the United Nations Charter Regime on Force: A Thick Legal Fog or a Receding Mist?” The International Lawyer 41, no. 4 (2007): pp. 1091-1119, https://doi.org/10.2139/ssrn.1078405 , 1092.
Adam Mann, “Starlink: SpaceX's Satellite Internet Project,” Space.com (Space, January 17, 2020), https://www.space.com/spacex-starlink-satellites.html.
Ibid.
Memme Onwudiwe and Kwame Newton, “Africa and the Artemis Accords: A Review of Space Regulations and Strategy for African Capacity Building in the New Space Economy,” New Space 9, no. 1 (January 2021): pp. 38-48, https://doi.org/10.1089/space.2020.0043, 42.
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, 175.
Monica Vidaurri et al., “Absolute Prioritization of Planetary Protection, Safety, and Avoiding Imperialism in All Future Science Missions: A Policy Perspective,” Space Policy 51 (November 12, 2019), https://doi.org/10.1016/j.spacepol.2019.101345, 4.