Is the Universe a zone of lawlessness? Developed during the Cold War, space law proved to be obsolete, while private companies entered the race and technological means have considerably evolved. Resource exploitation, waste management. The legal framework of the celestial conquest needs to be rethought. When Steven Mirmina discovered at the same time as the whole world the breathtaking images of the Tesla car that Elon Musk had just sent into orbit, in February 2018, this Professor of space law at Georgetown University felt somewhat distraught. He felt, like many, a certain wonder at an operation “so perfect” that it was difficult to play the game of the seven differences between the computer images and the real images of the launch of the rocket. But there was also a good deal of exasperation.
This spacecraft, the Tesla Roadster, was not going to measure anything, observe anything. It was a grand publicity stunt, at the cost of “intentional pollution” of outer space. The radio installed on board the imitation vehicle, and supposed to play the song Life on Mars? by David Bowie was too much detail: “There is not even a sound in space” said the Professor. But as a lawyer, Steven Mirmina quickly returned to a more technical examination of this unprecedented case: “Have any laws been broken?” he asked himself. No matter how hard I look, I haven’t found any. “The investigation was not as long as one might think”.
The various treaties that constitute International Space Law are about thirty pages long. They were all developed and ratified between the late 1960s and the late 1970s, in the context of the Cold War. “Space law was created for a world that is no more” said Matthew Stubbs, a Professor of law at the University of Adelaide in Australia. A whole community of space law specialists, mainly based in the United States of America, Canada, Australia and the Netherlands, is currently in turmoil. The “new space race” makes it urgent to clarify or even reform an obsolete legal framework, to regulate an area in which the economic landscape and technological means have changed completely, in just half a century.
The founding text, concerning the Universe, a zone of lawlessness, the 1967 Outer Space Treaty, was ratified by almost a hundred countries, including the major space nations, in 1967. It was signed in triplicate in London, Washington D.C. and Moscow. Space was still the preserve of the United States of America and the Soviet Union, engaged in a frantic race to prove their technological superiority. The treaty therefore established basic principles, with the major concern of not making space a playground for the strange war happening on Earth. The text states that outer space and celestial bodies are “the prerogative of all humanity” which can be “explored and used freely by all States” and “exclusively for peaceful purposes”. It specifies that space cannot “be the object of a national appropriation by proclamation of sovereignty, nor by the means of use or occupation”. The following treaties only reinforce these principles: that of 1968 adds that astronauts must be regarded as “envoys of humanity”, to whom is established a duty of assistance. A 1972 convention speaks of “damage” and “reparation” in the event of damage caused by space objects. In 1979, the Moon Agreement (ratified by only eighteen nations) oversaw the removal of natural resources “for peaceful purposes” and “in reasonable quantities”, encouraging States to share their samples as part of their scientific research.
These articles did not predict that barely fifty years later, space exploration would be within the reach of private companies and even billionaires around the world. However, this evolution implies a complete paradigm shift. We believed the space similar to the air we breathe: a good shared by all without being the property of anyone, a resource that everyone could enjoy at will, and this in harmony, since the fact that I breathing does not prevent others from breathing. But space is rather to be considered as a vulgar commodity, as we already know a lot on Earth, recalls Steven Mirmina: “For example, a little bit like the oceans” he specifies. The high seas may be vast, but when many ships cross it, their freedom of movement is affected. And this fish that a boat came to catch, nobody else can put in its net.
“The architecture of space law was never thought to address the issue of commercial exploitation of resources” says Professor Matthew Stubbs. The texts prohibit any appropriation of the celestial territory but are very succinct on the question of the use of resources. The United States of America was already engulfed in this breach in 2015 and Luxembourg in 2017 (the United Arab Emirates are preparing to follow them). These two countries, yet signatories to the space treaty, authorise the private companies based on their territories to exploit mineral resources in outer space, via a legal sleight of hand that Matthew Stubbs summarises thus: “Certainly, the 1967 Outer Space Treaty forbids the appropriation of the resources located on the celestial bodies. But technically, the text does not prevent them from extracting the resources and then appropriating them. It’s as simple as that”. For now, companies have not yet tapped into lunar resources, but it is a very clear objective for some of them, in search of rare metals (to make high-tech components) or certain gases that could be transformed into fuel… a bit like the Moon and other planets are becoming gas stations.
The rest of the story interests the Professor even more. “Even if we agreed to say that we can establish a mine in space, it would lack the entire legal framework allowing it to rotate without creating conflicts or an environmental disaster”. Space then bumps into the thorny issue of regulating the exploitation of natural resources. It has already arisen on our planet in connection with land and seas, and even international waters which, located more than two hundred nautical miles from the coast, do not belong to any country.
Couldn’t outer space law, concerning the Universe, a zone of lawlessness, borrow “simple” land laws to apply them outside of its atmosphere? There is the model that regulates fishing: anyone can fish in international waters, it comes down to appropriating the fish without appropriating the ocean. “This model poses the environmental problem of overfishing, and this will also be the case in space” said Matthew Stubbs. Either way, it doesn’t really solve the problem, because behind the idea that there is fish for everyone is in fact an imbalanced allocation of resources. Not everyone has the same access to fish and the Moon.
What about the model that regulates the exploitation of the seabed? Under the control of an international authority, any country can exploit the seabed in international waters, but the profits must be shared among all nations. “This paradigm of collective ownership would be very faithful to the founding principles of the Outer Space Treaty since it indicates that space exploration must benefit everyone” adds Matthew Stubbs. But it has the disadvantage of discouraging investors. At the University of Leiden in The Netherlands, a team of researchers is working on a compromise model, which would involve space players to share scientific and technological discoveries, but not the profits.
Whatever solution is adopted, the goal is not to end up in space with a “tragedy of the commons” that we are already experiencing on Earth, recalls Professor Steven Mirmina. It refers to the collective phenomenon of over-exploitation of common resources, highlighted by Garrett Hardin in 1968. The theory of this American ecologist tells the story of a fodder field common to an entire village. Each breeder takes as many animals as possible to avoid using his own field and to prevent competitors from taking advantage. The blinders well placed on the temples, each follows its own interest, all at the expense of the common good. Because the field quickly becomes a pool of mud where nothing grows for anyone. The path to the mud pool could also become impassable if space law does not change. Because the current treaties have not anticipated how worrying the pollution from space debris will become. The only international regulation in place consists of rules of good conduct, none of which acts as law.
Worse yet, argues Matthew Stubbs concerning the Universe, a zone of lawlessness, the 1967 Outer Space Treaty would hinder the active removal of debris, even if we had reliable technology: “The 1967 Outer Space Treaty provides that each country retains ownership and control over its satellites; if you want to desorb a piece of debris, you must obtain authorisation from the country that sent it into space. It’s a significant barrier! What happens if there is disagreement? If this debris is not identifiable, or if it is not registered in the name of anyone?” It would be in any case wiser, according to him, to establish a legal framework for this new field of activity: “As just about everything in space technology, the tool is duplicative” says Professor Matthew Stubbs. You can use it to desorb space debris, but also to capture a satellite you don’t like.
Michelle Hanlon, a Professor of space law at the University of Mississippi, would even like to see some debris in the law: those satellites that are part of our history. Neither did the Cold War treaties provide for this. The history of space exploration was yet to be made, and the researcher does not blame the first legislators for having seen a little short. “The 1967 Outer Space Treaty is the Magna Carta of space law, it will never be obsolete! We will continue to teach it, even in centuries and centuries”. In centuries and centuries, the Tesla Roadster may still be in orbit. While the Earthlings questioned its legality, the spacecraft had time to complete its first complete orbit around the Sun. The mannequin, still installed on board, continues its ride. Has he ever “listened” to Life on Mars? more than two hundred thousand times. This is what can be said concerning the Universe, a zone of lawlessness.