Exploring and using outer space under law

Just as nation-states and private entities are beginning to explore and mine the mysteries of the deep seabed under the oceans, humankind (no longer referred to as mankind) is on the cusp of exploring and using space, satellites, the Moon, Mars, comets and asteroids. This will surely be a century of discovery.

Law has been part of space exploration from the beginning. Just prior to the Apollo 11 moon landing of July 24, 1969, states executed the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (herein Outer Space Treaty) of Jan. 27, 1967, entering into force Oct. 10, 1967 (ratified by the United States on May 24, 1967).

Recently, the United States took the lead through the State Department and NASA in drafting the Artemis Accords on Oct. 13, 2020, grounded in the said Outer Space Treaty. Several states have recently joined. In December 2021, the White House released a United States Space Priorities Framework (herein U.S. Framework).

My purpose is to briefly introduce these documents by looking at a few articles: the Outer Space Treaty, the Artemis Accords and the U.S. Framework. The issue is whether universal law will prevail or will great power divisions or “self-seeking exploitation” begin to intrude.

All three documents look to a comprehensive, universal legal world order. The Outer Space Treaty and the Artemis Accords are grounded in the Charter of the United Nations. Although not referring to the U.N., the U.S. Framework makes reference to “global space governance” and “to uphold and strengthen a rules-based international order for space.” All three documents emphasize the peaceful exploration and use of outer space.

Article I of the Outer Space Treaty states that the exploration and use “…shall be carried out for the benefit and the interest of all countries irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The Artemis Accords say, “…the sustainable and beneficial use of space for all humankind.” The U.S. Framework speaks, instead, of the interests of “our allies and partners,” and “…for the benefit of the American people…” “Our global network of alliances and partnerships is a strategic advantage of the United States.”

The Outer Space Treaty speaks in Article I of the freedom and equality in doing scientific research. The Artemis Accords discuss the sharing of research as a value. Again, the U.S. Framework is different. It does not deal directly with research, but with, “the competitive and burgeoning U.S. commercial space sector.” It speaks of combatting “…foreign government non-market practices, protect(ing) critical U.S. technologies and intellectual property, and (to) reduce reliance on strategic competitors for key space capabilities.”

Article II of the Outer Space Treaty deals with non-appropriation of space, the Moon or other celestial bodies. Section 10 of the Artemis Accords deals with extraction and utilization of space resources, such as from the surface or subsurface of the Moon, and that this extraction is not inherently a national appropriation under the Outer Space Treaty, but that the public, the scientific community, and the secretary-general of the U.N. must be given notice. Also, in Article IV of the Outer Space Treaty no nuclear or weapons of mass destruction are allowed, but the U.S. Framework states that a space program, “…underpins our military strength.” We founded the U.S. Space Force in the Department of Defense on Dec. 20, 1919, for deterrence, but if deterrence fails, we will have to “…fight for space superiority in the future.” (Gen. John Raymond, Space Force chief).

In this brief review, we have seen areas of potential political conflict both within the U.S. and with other states. Imagine the effects of the rise of China. Will universalism prevail? Or will the human tendency of conflict over sharing emerge?

I imagine beings from other solar systems may be having these same debates. We may hear from them during this century. “Think you this mold of hopes and fears, Could find no statelier than his peers, In yonder hundred million spheres?” Alfred Tennyson, "The Two Voices," 1842.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Exploring and using outer space under law