By: Gabriela Ibañez
From the first steps on the Moon to the far-reaching rover missions charting new territory on Mars, humanity’s space endeavors have broadened our scope of possibilities and ignited a host of political and legal questions on an international scale. This unfolding narrative has given rise to the concept of ‘global space governance,’ which encapsulates a range of international, regional, and national laws, alongside regulatory institutions designed to govern and monitor space-related activities. While the legal framework in the early stages of space exploration was primarily driven by scientific curiosity, contemporary space exploration has decidedly shifted its focus towards commercial exploitation. As nations and private businesses become increasingly reliant on space technologies, the legal landscape has shifted from an emphasis on cooperation and universal proprietorship to one that proactively regulates and mitigate conflicts, particularly regarding property rights, the growing ownership of private actors in the space dominion, and increased militarization in space.
In the early days of space exploration, the Cold War rivalry fueled an ambitious space race between the United States and the Soviet Union. In September 1959, the Soviet Union’s Lunik II rocketship became the first spacecraft to impact another celestial body when the nose cone of Lunik II made contact with the Moon’s surface. The impact scattered medallions inscribed with the Soviet coat of arms, signifying an early attempt to assert territorial claims in outer space. Fast forward to 1969, and the United States made history with the Apollo 11 mission when astronauts, Neil Armstrong and Buzz Aldrin, planted the American flag on the lunar surface. While this symbolic act was not a formal territorial claim, it did raise questions about lunar sovereignty, particularly in light of the United States’ choice to reject recommendations from the United Nations, suggesting that the Apollo 11 crew leave a UN flag.
In response to these pivotal developments, the U.N. Committee on the Peaceful Uses of Outer Space (COPUOS) emerged initially as an ad hoc Committee within the United Nations but later became a permanent fixture in 1959. The COPUOS forged the Outer Space Treaty of 1967, marking the beginning of an international space regime. This treaty, endorsed by several nations, including the United States and the Soviet Union, laid the cornerstone for the foundational principles of global space governance. The Outer Space Treaty served to ensure that no territorial sovereignty or national appropriation of celestial bodies would be established. Additionally, it emphasized the importance of international cooperation and intel exchange for the advancement of scientific research and exploration. Nonetheless, Article VIII of the treaty introduced the concept of “quasi-territorial” jurisdiction, extending property rights—for lack of a better term—to a space facility and a reasonable area around the facility, valid insofar as it is necessary to accomplish the exploration and exploitation of outer space and celestial bodies. In an effort to address the issue of lunar ownership, the United Nations finalized the Moon Treaty in 1984. This agreement aimed to build upon the principles of the Outer Space Treaty while emphasizing the equitable sharing of lunar resources for the collective benefit of humanity. However, the Moon Treaty has not enjoyed the same widespread adoption as the Outer Space Treaty. Notably, both the United States and the Soviet Union refrained from becoming parties to it, diverging from the global approach to lunar governance.
The United States has been a driving force in advancing the commercialization of space launch activities. The Commercial Space Launch Act (CSLA) of 1984 was instrumental in encouraging private sector participation in space exploration. More recently, in 2020, a memorandum issued by former President Donald Trump shaped a national space policy aimed at fostering unregulated U.S. access to space. This offered support for future human missions to Mars and established an institutional presence on the Moon. These efforts were further reinforced through the Artemis Accords, a set of bilateral agreements that outlined NASA’s goal for the creation of a crewed lunar base by 2030. All of these efforts symbolize a paradigm shift towards more extensive space exploration, carried out with few boundaries or controls, due to the significant gaps that currently exist in space jurisprudence.
The vacuum left by these gaps in international space law is not only being leveraged by scientists and governments, but it is also providing a celestial playground for multi-billion-dollar corporations and ultra-wealthy individuals, all competing to lead in space innovation and secure their stake in newfound resources and opportunities. However, without adequate legislation, modifications to existing international treaties, and an expansion of treaty signatories, particularly among nations with space capabilities, we face the potential for conflicts. These conflicts could arise from the unchecked commercial monopolization of mineral resources and the proliferation of control within an arena that may create an alarming imbalance of power within a single nation, or worse yet, within a single individual.
The Outer Space Treaty, the most comprehensive international space agreement to date, prohibits national appropriation of spatial resources while leaving the issue of private appropriation unaddressed. The Cold War-era Space Treaties are ill-suited to tackle emerging space developments, such as commercial space regulations, space militarization, international space traffic management, etc. We recognize that deepening our understanding of space benefits society and the science, and that the private sectors involvement in space activities can significantly increase funding and research capabilities, often surpassing what governments alone can provide. However, the increasing privatization of space holds the potential for significant consequences.
Today’s space race is not so much defined by competition between countries like the United States and the USSR but rather unfolds among private actors, such as SpaceX and Blue Origin, developed by Elon Musk and Jeff Bezos, respectively. In the near future, planets and spatial bodies are likely to serve as bases for the extraction of rare and valuable resources. This trajectory may disproportionately favor the wealthiest individuals on Earth, potentially exacerbating economic disparities. Without timely and comprehensive changes to international treaties and agreements, this imbalance of power and wealth in the realm of space exploration could indeed become a challenging reality. As nations and private entities embark on the journey towards space colonization, the importance of proactive regulation and equitable resource sharing is crucial to ensure a harmonious and sustainable future beyond our home planet.