Regrettably, space is becoming the 21st-century version of the Wild West — characterized by a “gold rush” frenetic climate of risk-taking entrepreneurship and a dearth of binding rules guiding behavior. Yet, under international law, governments are still responsible for private-sector activities in space. This is the dilemma — and challenge — of the new space era.
Crowded Orbits
Twenty countries across the globe have civil space programs with budgets of more than $100 million a year; 70 nations have space agencies, most with operating satellites. There are six major space powers — the United States, China, the European Union, Russia, Japan, and India — though middle powers like South Korea and Israel are also investing heavily in space.
Although it is difficult to keep tally, there are now some 11,300 satellites orbiting in an increasingly crowded low Earth orbit (LEO), half of which belong to the U.S. government and private American entities. Already, the LEO region is so crowded that the International Space Station (ISS) had to maneuver to avoid space debris, and there is a lot of that — some 35,000 pieces of what are a million or more pieces of debris are monitored by NASA. Similarly, the Chinese space station nearly collided with a launch of one of Elon Musk’s Starlink minisatellites. Traffic management in LEO is critical to the functioning of both private and government activities there. There is concern that overcrowding may lead to the “Kessler effect”: when the density of objects in LEO leads to collisions with space debris, creating a chain reaction.
Fortunately, a growing sector of the space economy comprises companies developing methods to remove space debris, one of the most urgent operational problems for both government and private space ventures. Some of these firms are working with governments to clean up space; these efforts may be functional in this decade.
Space Industry
Though the most developed area of the private space economy is that flowing from satellite launches and small satellites and space tourism, space offers a wide spectrum of potential economic opportunities. These range from space mining of rare-Earth minerals and space debris removal services to research and development and manufacturing that could take advantage of the weightlessness in microgravity conditions. There were 155 patents with “microgravity” in the title or abstract in 2020, according to a McKinsey report.
On the moon and some asteroids, 6,000 of which are monitored by NASA, there are significantly more rare-Earth minerals than on Earth. Companies like Seattle-based Planetary Resources and others are positioning themselves to mine such minerals, though the economics of asteroid mining remain problematic. Moreover, the question of laying claims to global commons looms over these ambitions.
Numerous companies are preparing to conduct R&D and are building factories in space. These include those developing 3D printing in space of everything from food to bricks from moon dust, producing oxygen and metals from lunar dust, R&D on growing stem cells to advance the next generation of cell therapies, and fabricating semiconductors. Some are building on experiments conducted at the ISS, and some are in the proof-of-concept stage, while others are well into development.
The New Wild West?
Of course, the outcome of many of these ventures is very uncertain, both in terms of economic viability, and, not least, the legal and regulatory environment. Indeed, whether space will remain a global commons or an arena for conflict is an open question.
For example, “Who owns the moon?” is no longer a specious question, but a timely one posed by a governance deficit that looms over activities in space. Elon Musk and governments want to colonize Mars. China plans to construct a nuclear-powered base on the moon by 2028. NASA plans to build a moon base by 2030. With water concentrated at the North and South Poles, these regions are prime real estate. And no treaty is in force to govern activities on the moon.
Yet, several governments, which under international law are responsible for their private sector’s space activities, have adopted laws permitting individual private actors to exploit space resources. In 2015, the United States passed a commercial space law granting U.S. businesses the right to extract resources throughout the cosmos. The United Arab Emirates followed suit in 2019. Luxembourg has also enacted a law granting private firms the right to space resources.
The foundational international legal document regarding space activities, the 1967 Outer Space Treaty (OST), with 113 parties to it — including the United States, Russia, and China — has language that appears inconsistent with such policies. All signatories agreed to the principles in the OST, which states in Articles I and II:
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. . . . Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
Unfortunately, technological change and geopolitics have limited the OST’s utility. It is no longer fit for its purpose. Key issues created by proliferating space activities and of voluminous space debris are not covered in the treaty. Geopolitics has complicated problems such as how to deal with the blinding of satellites, the absence of any dispute-settlement mechanism, and the growing issue of traffic management. There are some additional legal agreements in effect under the United Nations Office for Outer Space Affairs that do address operational problems in space activities. These include liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, and the registration of space activities. The hope of sustaining space for only peaceful uses has been overtaken as space has become a critical domain for military planners of competing great powers. Today, conflicting claims to the cosmos are an impending aspect of great-power competition.
Governing Beyond the Artemis Accords
NASA has embarked on a noble effort to update rules for operations in space. Begun under President Donald Trump and endorsed by the Biden administration, the Artemis Accords have been signed by 29 allies and partners. The accords are, in effect, principles to govern activities that “. . . may take place on the Moon, Mars, comets and asteroids . . . as well as in the orbit of the Moon or Mars,” and in cislunar space. Most of Artemis’ principles are intended as public goods and would make sense as global norms, but its language about space resource extraction is problematic.
China and Russia have declined to join the accords — and it doesn’t work if only your friends stop at red lights. In 2022 China created a BRICS Joint Committee on Space Exploration. Although its scope is still uncertain, the nascent BRICS venture could evolve into a Sino-centric competitor to the Artemis Accords.
The accords state that the extraction of resources from the moon and other celestial bodies “should be executed in a manner that complies with the Outer Space Treaty,” adding that “signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.” But the extraction of resources implies ownership or licensing rights. Here, the OST’s language is unambiguous: celestial bodies are not subject to “national appropriation by claim of sovereignty. . . by means of use . . . or by any other means.” Thus, if the United States and China both claim overlapping areas for building moon bases, or if U.S. or foreign firms seek to mine the same area of an asteroid, there is no clear legal basis to adjudicate conflicting claims.
There has been little dialogue on this matter with the most likely claimant of moon real estate, China. NASA had little choice but to exclude Beijing from the accords—the 2011 Wolf Amendment bans NASA’s cooperation with any Chinese government–affiliated entities. But the law has proved largely counterproductive, neither improving human rights nor constraining China’s space efforts. Meanwhile Russia, though a longstanding U.S. partner in the ISS, has refused to sign the agreement, opting instead to partner with China on a Moon base and other space ventures.
Policy Implications
The large and growing dependency on space for daily life on Earth (GPS, telecommunications, ATMs, TV) — as well as the proliferation of space actors; the fact that the space domain is a key factor in the military calculus of major powers; and, not least, the burgeoning private-sector space economy point to obvious policy implications. Clearly, the rules and norms for activities in the cosmos need to be updated. Repealing or amending the Wolf Amendment to allow broader discourse and cooperation with China would help to reduce the risks to traffic management and open the way to adjudicating conflicting claims in the cosmos. And on the urgent issue of space debris, an ad hoc public-private effort, pooling the resources of major space actors working with private space firms to mitigate the threat to civil use of space, is in the mutual interest of all in the global commons.
The Booming “Wild West” Space Economy Faces a Rules Deficit
By Robert A. Manning
Grand Strategy
Space is no longer the province of governments, nor of great powers. Today, a growing number of countries and commercial actors are active in space. One of the most dynamic, and most underreported, stories of the 21st-century economy is of a private-sector space industry projected to reach $1 trillion in annual revenue by 2040. This booming space economy now accounts for four out of every ten orbital launches and leads in developing and deploying mini satellites into low Earth orbit (LEO). Some 10,000 companies are now pursuing opportunities in space, in sectors from space tourism to mining and pharmaceuticals, to food and semiconductors.
Regrettably, space is becoming the 21st-century version of the Wild West — characterized by a “gold rush” frenetic climate of risk-taking entrepreneurship and a dearth of binding rules guiding behavior. Yet, under international law, governments are still responsible for private-sector activities in space. This is the dilemma — and challenge — of the new space era.
Crowded Orbits
Twenty countries across the globe have civil space programs with budgets of more than $100 million a year; 70 nations have space agencies, most with operating satellites. There are six major space powers — the United States, China, the European Union, Russia, Japan, and India — though middle powers like South Korea and Israel are also investing heavily in space.
Although it is difficult to keep tally, there are now some 11,300 satellites orbiting in an increasingly crowded low Earth orbit (LEO), half of which belong to the U.S. government and private American entities. Already, the LEO region is so crowded that the International Space Station (ISS) had to maneuver to avoid space debris, and there is a lot of that — some 35,000 pieces of what are a million or more pieces of debris are monitored by NASA. Similarly, the Chinese space station nearly collided with a launch of one of Elon Musk’s1Elon Musk is the chief technology officer of SpaceX. Starlink minisatellites. Traffic management in LEO is critical to the functioning of both private and government activities there. There is concern that overcrowding may lead to the “Kessler effect”: when the density of objects in LEO leads to collisions with space debris, creating a chain reaction.
Fortunately, a growing sector of the space economy comprises companies developing methods to remove space debris, one of the most urgent operational problems for both government and private space ventures. Some of these firms are working with governments to clean up space; these efforts may be functional in this decade.
Space Industry
Though the most developed area of the private space economy is that flowing from satellite launches and small satellites and space tourism, space offers a wide spectrum of potential economic opportunities. These range from space mining of rare-Earth minerals and space debris removal services to research and development and manufacturing that could take advantage of the weightlessness in microgravity conditions. There were 155 patents with “microgravity” in the title or abstract in 2020, according to a McKinsey report.
On the moon and some asteroids, 6,000 of which are monitored by NASA, there are significantly more rare-Earth minerals than on Earth. Companies like Seattle-based Planetary Resources and others are positioning themselves to mine such minerals, though the economics of asteroid mining remain problematic. Moreover, the question of laying claims to global commons looms over these ambitions.
Numerous companies are preparing to conduct R&D and are building factories in space. These include those developing 3D printing in space of everything from food to bricks from moon dust, producing oxygen and metals from lunar dust, R&D on growing stem cells to advance the next generation of cell therapies, and fabricating semiconductors. Some are building on experiments conducted at the ISS, and some are in the proof-of-concept stage, while others are well into development.
The New Wild West?
Of course, the outcome of many of these ventures is very uncertain, both in terms of economic viability, and, not least, the legal and regulatory environment. Indeed, whether space will remain a global commons or an arena for conflict is an open question.
For example, “Who owns the moon?” is no longer a specious question, but a timely one posed by a governance deficit that looms over activities in space. Elon Musk and governments want to colonize Mars. China plans to construct a nuclear-powered base on the moon by 2028. NASA plans to build a moon base by 2030. With water concentrated at the North and South Poles, these regions are prime real estate. And no treaty is in force to govern activities on the moon.
Yet, several governments, which under international law are responsible for their private sector’s space activities, have adopted laws permitting individual private actors to exploit space resources. In 2015, the United States passed a commercial space law granting U.S. businesses the right to extract resources throughout the cosmos. The United Arab Emirates followed suit in 2019. Luxembourg has also enacted a law granting private firms the right to space resources.
The foundational international legal document regarding space activities, the 1967 Outer Space Treaty (OST), with 113 parties to it — including the United States, Russia, and China — has language that appears inconsistent with such policies. All signatories agreed to the principles in the OST, which states in Articles I and II:
Unfortunately, technological change and geopolitics have limited the OST’s utility. It is no longer fit for its purpose. Key issues created by proliferating space activities and of voluminous space debris are not covered in the treaty. Geopolitics has complicated problems such as how to deal with the blinding of satellites, the absence of any dispute-settlement mechanism, and the growing issue of traffic management. There are some additional legal agreements in effect under the United Nations Office for Outer Space Affairs that do address operational problems in space activities. These include liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, and the registration of space activities. The hope of sustaining space for only peaceful uses has been overtaken as space has become a critical domain for military planners of competing great powers. Today, conflicting claims to the cosmos are an impending aspect of great-power competition.
Governing Beyond the Artemis Accords
NASA has embarked on a noble effort to update rules for operations in space. Begun under President Donald Trump and endorsed by the Biden administration, the Artemis Accords have been signed by 29 allies and partners. The accords are, in effect, principles to govern activities that “. . . may take place on the Moon, Mars, comets and asteroids . . . as well as in the orbit of the Moon or Mars,” and in cislunar space.2Cislunar space refers to the area surrounding Earth, extending up to the moon’s orbit. It includes various orbits, such as LEO, geostationary orbit (GEO), and the lunar orbital environment. Most of Artemis’ principles are intended as public goods and would make sense as global norms, but its language about space resource extraction is problematic.
China and Russia have declined to join the accords — and it doesn’t work if only your friends stop at red lights. In 2022 China created a BRICS Joint Committee on Space Exploration. Although its scope is still uncertain, the nascent BRICS venture could evolve into a Sino-centric competitor to the Artemis Accords.
The accords state that the extraction of resources from the moon and other celestial bodies “should be executed in a manner that complies with the Outer Space Treaty,” adding that “signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty.” But the extraction of resources implies ownership or licensing rights. Here, the OST’s language is unambiguous: celestial bodies are not subject to “national appropriation by claim of sovereignty. . . by means of use . . . or by any other means.” Thus, if the United States and China both claim overlapping areas for building moon bases, or if U.S. or foreign firms seek to mine the same area of an asteroid, there is no clear legal basis to adjudicate conflicting claims.
There has been little dialogue on this matter with the most likely claimant of moon real estate, China. NASA had little choice but to exclude Beijing from the accords—the 2011 Wolf Amendment bans NASA’s cooperation with any Chinese government–affiliated entities. But the law has proved largely counterproductive, neither improving human rights nor constraining China’s space efforts. Meanwhile Russia, though a longstanding U.S. partner in the ISS, has refused to sign the agreement, opting instead to partner with China on a Moon base and other space ventures.
Policy Implications
The large and growing dependency on space for daily life on Earth (GPS, telecommunications, ATMs, TV) — as well as the proliferation of space actors; the fact that the space domain is a key factor in the military calculus of major powers; and, not least, the burgeoning private-sector space economy point to obvious policy implications. Clearly, the rules and norms for activities in the cosmos need to be updated. Repealing or amending the Wolf Amendment to allow broader discourse and cooperation with China would help to reduce the risks to traffic management and open the way to adjudicating conflicting claims in the cosmos. And on the urgent issue of space debris, an ad hoc public-private effort, pooling the resources of major space actors working with private space firms to mitigate the threat to civil use of space, is in the mutual interest of all in the global commons.
Notes
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