Our Growing Need for Space Law

by Rebecca Schembri
Science communicator @rebeccafromreno

The United Nations Outer Space Treaty, the U.S. Space Act, and the NASA Artemis Accords have different rules that presumably play well together. But words such as probably, basically, and kindof should not describe the legal framework of the most important expedition of humankind: migration into the cosmos.

Space law is soft. It was originally passed when spacefaring technology was mostly science fiction; the agreement’s main intent was to prevent weaponization of space during the Cold War. But the 1967 Outer Space Treaty is imprecise for today’s technology and it is based on voluntary diplomacy and cooperation. This makes international space law fuzzy and difficult to enforce.

Nationally, countries are making new laws that stretch the confines of international space law. These countries realize that if they can get to space, they can kindof legally build whatever they want as long as they don’t threaten the world. Because of new technology, our traditional space law framework of no weapons, no land ownership, and access for all is growing obsolete.

The Outer Space Treaty (OST) prohibits militarization of space. Under the OST, which is signed and ratified by at least one-hundred and eleven countries, spacefaring military practices and off-Earth nuclear weapons are expressly forbidden. Why, then, does the U.S. have a military Space Force, and why have both China and Russia used anti-satellite weapons (ASATs) with no consequences?

When Russia destroyed a satellite in 2021, for example, the international community expressed its strong disapproval, but could do little to enforce compliance. This is because international law is somewhat vague and enforcement is voluntary–there are no international police to regulate a situation in which Russia said it was merely decommissioning its satellite and not weaponizing Earth’s orbit. The U.S. Space Force, on the other hand, is publicly clear in its intent to defend space assets such as U.S. and allied military satellites. Weapons have been deployed in space, and the militaries of spacefaring countries are poised to use force.

The Outer Space Treaty prohibits land ownership in space, but in 2015 the United States passed its Space Act, allowing any U.S. citizen to gather non-biological space resources and to “possess, own, transport, use, and sell” such resources. Although the act nods to “international obligations” of peaceful and scientific uses, the Space Act gives Americans an unconventional go-ahead for planting mining habitats in space. Because the OST does not expressly say you cannot mine in space, then you can mine in space, kindof. The mining presence just needs to be peaceful and scientific; a storyline most public affairs departments can handle.

In two other cases, China and Russia have plans to claim land on the far side of the moon and NASA has teamed with at least nineteen countries to claim the lunar south pole. The loophole here is that these countries do not say they are taking lunar property but that they are setting up a “permanent human presence” on the moon for scientific purposes. This is basically, again kindof, legal according to international law. The Outer Space Treaty does not specify for how long you can conduct scientific experiments in outer space. Therefore, as long as NASA, China, and U.S. mining companies say they are working on science, they can plant their flags and stay in their chosen lunar locations probably indefinitely.

The Outer Space Treaty calls for space to be freely accessible to all nations regardless of economic and ethnic factors. But if space is getting quietly militarized, and the moon–and eventually Mars–are getting quietly territorialized, how does that honor our international promise to share the domain? Although China invites other allies, and the U.S. continues to recruit international support for the Artemis missions, where do non-spacefaring countries fit into all of this?

Will there be availability on the moon when developing nations eventually make it to space? Will these countries have a place to put satellites in crowded low-Earth orbit once they can afford the technology? Seemingly, our space laws and policies are allowing a “Wild, Wild, West” mentality where whoever gets to space first will take whatever they want, and those who arrive late will choose from the leftovers.

It is time to amend international space law. States must agree to set parameters for space security, ownership, and sustainability or we will repeat the colonialistic errors of the past and create a world where international cooperation is impotent. Although it is uncomfortable and slow, diplomacy is the best option for our children’s children and for humans who will migrate into space. The best thing we can do is to step back, slow down, and include all nations in these crucial and significant decisions.

Rebecca Schembri is an International Relations graduate student at Harvard University. Her concentration is in Space Diplomacy.

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