Legal questions linger as governments and companies keep pushing into space

The Perseverance rover’s landing on Mars is still fresh in people’s memories, privately owned companies are ferrying people and supplies into orbit, and NASA continues to work on “the most powerful rocket” it has ever built. But as world governments and private enterprises continue to eye the skies for opportunities, a SXSW panel called “Who on Earth should govern Space” makes clear that the laws dealing with space aren’t evolving as fast as the technology that gets us there.

“People like to think of space as the Wild Wild West — nothing out there, there’s open frontier, we can do whatever we want,” said Michelle Hanlon, president of For All Moonkind, a non-profit devoted to preserving mankind’s cultural heritage in space. “Unfortunately or fortunately, that’s not true at all.”

Hanlon was referring to the Outer Space Treaty, which was developed in 1966 and ratified by over 60 countries in early 1967. Considering the treaty was put into effect a full two years before mankind landed on the moon, it’s little surprise that the document is heavy on broad principles, but light on specifics. Among its greatest hits: outer space shall be free for exploration and use by all states; states should avoid harmful contamination of space; celestial bodies shall only be used for peaceful purposes; and, perhaps most importantly, the assertion that outer space isn’t subject to claims of sovereignty by Earth-bound governments.

The treaty went a long way in enshrining a set of lofty values dictating how we approach and use outer space, but things have changed dramatically in the last 54 years. “We’re looking at this moment in human history where we’re thinking ‘Oh, well, we want to do so much in space, but we can’t own anything,’” Hanlon said. “So we really need to think about how we’re going to conceive of property in space, mining rights in space.”

The idea of mining asteroids and other celestial bodies for their resources seemed to peak in the mid-2010s, when companies like Deep Space Industries and Planetary Resources regularly made headlines. (By 2016, the latter had managed to raise a cool $50 million in funding for their space mining efforts, including investments from former Google CEO Larry Page and former Alphabet/Google executive chairman Eric Schmidt.) These days, enthusiasm has waned somewhat, though Dr. John Junkins, interim president of Texas A&M University, said on the panel that mining “and material processing in space will happen someday” and that a legal framework to allow for those activities was necessary.

“The moon is a tremendous resource, and it will be mined before the asteroids are, most likely,” he added.

Defining those property rights and frameworks is one thing, and it will be some time before they can be fully fleshed out. Enforcing those rights — and rights defined by the Outer Space Treaty — is a separate question, and one that hasn’t been fully addressed despite incidents that should warrant it.

Junkins reminded viewers of a day in 2007 when China destroyed one of its defunct weather satellites with a missile, which left behind a hazardous cloud of debris with difficult-to-track orbits. A deliberate act like this seems to run afoul of the OST’s stance on “contamination” of outer space, but China never faced serious repercussions for what Junkins referred to as a “monumental environmental space crime.”

Strictly speaking, China isn’t alone, though. The United States and Russia have left their share of debris floating in earth orbit, with Dr. Junkins suggesting that 40 percent of space junk by mass belonged to the now-defunct Soviet Union. That leads to a tricky question of liability, which Caryn Schenewerk, VP of Regulatory and Government Affairs at Relativity Space, doesn’t think will be addressed until some catalyzing moment forces the issue.

“By launching something into space, you do not give up ownership of it,” she said. “And when you leave it behind in space, when you abandon it, you do not give up ownership of it. So it's an interesting issue… you maintain the liability aspect of it which, by the way, in space is not strict liability; it's only strict liability on Earth. So in space you actually have to prove who's at fault and then fight it out amongst yourselves. And good luck proving really who's at fault in space! We'll get better at that, I guess if we have to, but we really need an impetus for this.”

There have been efforts to more fully codify a set of rules to govern the way we approach space, including most recently the Artemis Accords signed by the United States, Australia, Brazil, Canada, Japan, Luxembourg, Italy, Ukraine, the United Kingdom and the United Arab Emirates in 2020. Ten countries are a start, but a slew of significant space-faring states — including China, India and Russia — have not bought into the largely US-brokered accord. It’s hard to say exactly what (if anything) it will take for the international community to agree to a comprehensive set of guidelines for the use of outer space. But one thing is clear: With the technology to get us and keep us in space growing more advanced by the day, these are issues we can’t afford to keep punting.