Op-Ed by Nathan Inks
Just over 50 years ago, the Outer Space Treaty—the document that forms the basis of international space law—entered into force. Most developed countries ratified the treaty prior to its effective date or have since done so. No country having yet landed a man on the Moon, the treaty provided an adequate legal framework for the years to come. The basic purpose of the treaty was to promote peace in space and keep it free for all nations to explore: nations may not place weapons of mass destruction in space or claim sovereignty over space or celestial bodies, celestial bodies must be used for peaceful purposes, and nations are responsible for activities carried out by themselves or subjects and are responsible for any damages caused.
Fast-forward 50 years, and the treaty is not nearly as adequate. No longer are we living in an era where governments are the sole driving force behind space exploration; the private sector is playing an increasing role—perhaps even a dominant role in some aspects of the industry—and international space law is woefully inadequate for what lies ahead. Although the Outer Space Treaty prohibits nations from claiming sovereignty over the Moon or other celestial bodies, the treaty is silent as to whether private entities are permitted to mine or otherwise remove natural resources.
Although the treaty prohibits nations from laying claim to celestial bodies, it did not vest any authority with jurisdiction over space—most significantly, the Moon. The international community attempted to remedy this in the 1970s and 1980s with the Moon Treaty, which would have vested the international community as a whole with jurisdiction; however, only a handful of countries ratified the treaty—none of which have major space programs.
The speed at which the private space industry is outpacing the relevance of the Outer Space Treaty has already caused some problems. One of the provisions of the treaty requires that nongovernmental entities be authorized and supervised by their government. While the U.S. government has agencies that oversee and regulate launches and satellites, no such regulatory scheme exists for landing on the Moon. Moon Express, a small private company with a goal of mining natural resources from the Moon, had to come up with a one-time regulatory patch in order to get approval to put a robotic lander on the Moon. With additional private companies wanting to either gather resources from the Moon or use it as a launch pad to Mars, the lack of an existing regulatory framework is going to increasingly serve as a roadblock to the private space industry.
Although the private sector has played an increasingly important role in space exploration, President Trump’s proposal to develop a Space Force highlights an additional hole in the treaty. Although the treaty prohibits nations from utilizing space for the placement of weapons of mass destruction, it is completely silent on the subject of conventional weapons. If the U.S. proceeds with establishing a military branch dedicated to outer space, it will certainly not be the only nation to do so.
The nature of space exploration, travel, and industry has changed significantly over the past 50 years, and future changes are likely to be even more drastic. With the private sector playing an increasing role, the international community needs to have a discussion about what private industry should and should not be able to do—especially when it comes to harvesting natural resources. With the increasing chance of militarization of space, the international community also needs to lay some ground rules. Finally, because the private sector is shaping up to play such an important role, the federal government needs to draft a regulatory scheme that promotes expansion of the industry while still protecting the interests of the nation and world as a whole. The Outer Space Treaty was a revolutionary document, but the need to expand the fundamentals of space law is long overdue