Final frontier may no longer belong to all

The Outer Space Treaty of 1967, which lays out principles that govern outer space, the moon and celestial bodies, was a symbol of the triumph of science over politics. But the looming prospect of commercialisation of space has begun to test the limits of international space law.
Representative image
Representative imageReuters

Jessica F. Green

The Russian government has said that it will‌ withdraw from the International Space Station‌ “after 2024.” Instead of choosing multilateral cooperation, it plans to build its own station and send cosmonauts there to continue space research and exploration.

Russia’s announcement sounds ominous — particularly given its invasion of Ukraine — but ‌this move, part of a broader trend away from multilateralism in international space law, is but one recent signal of the fraying of international space cooperation. Another was the Artemis Accords, a legal framework designed to potentially regulate future commercial activities in outer space, which was created under the Trump‌ administration and upheld by the Biden ‌‌administration. Such actions threaten multilateralism beyond Earth and portend a future where space may no longer belong, equally, to all people.

A number of U.N. treaties‌‌ regulate outer space, and ‌strong legal norms ‌bolster those global rules. The foundational agreement is the Outer Space Treaty of 1967, which lays out ‌‌the principles that govern outer space, the moon and other celestial bodies. Signed in the middle of the Cold War, the treaty was a symbol of the triumph of science over politics: States could cooperate in space, even as the prospect of mutual destruction loomed on Earth.

Currently, more than 100 countries — including the United States and Russia — are parties to the ‌treaty, which establishes outer space as a peaceful zone, ‌‌prohibits the use or installation of weapons of mass destruction‌‌ and ‌designates space as “the province of all mankind.” ‌ ‌States cannot make claims of sovereignty or ‌‌appropriate territory. ‌The treaty also calls for scientific cooperation among states, with the belief that such cooperation will promote “friendly relations” among countries and their peoples. In short, the treaty intends that all nations benefit‌ from any activities conducted in space.

The symbolic value of the treaty is obvious: Nationality recedes into the background when astronauts are floating in space. But beyond that, it has created standards and practices to prevent environmental contamination of the moon and other celestial bodies. It promotes data sharing, including about the many objects, like satellites and spacecraft, launched into space, which helps to avoid collisions. And its codified norms of the common heritage of mankind, peaceful use and scientific cooperation help preserve multilateralism in the face of states’ derogations.

But the looming prospect of the commercialisation of space has begun to test the limits of international space law. In 2020, NASA, alone, created the Artemis Accords, which challenge the foundational multilateral principles of ‌prior space agreements. These are rules primarily drafted by the United States that other countries are now adopting. This is not collaborative multilateral rule making but rather the export of U.S. laws abroad to a coalition of the willing.

The accords take the legal form of a series of bilateral treaties with 21 foreign nations, including Australia, Canada, Japan, the UAE and Britain. This is not simply a relic of the anti-globalist rhetoric and policies of the Trump administration. Just two weeks ago, ‌ Saudi Arabia‌ signed the Artemis Accords, during President Biden’s visit.

Moreover, the accords open up the possibility of mining the moon or other celestial bodies for resources. They create “safety zones” where states may extract resources, though the document states that these activities must be undertaken in accordance with the ‌Outer Space Treaty. Legal experts point out that these provisions could violate the principle of non-appropriation, which prohibits countries from declaring parts of space as their sovereign territory. Others suggest that it is important to get in front of the changing technological landscap‌e, arguing that when mining the moon becomes possible, there should already be rules in place to regulate such activities‌. Failure to do so could result in a ‌‌crisis similar to that around seabed mining‌‌, which is poised to begin even though U.N. rules have yet to be finalised.

Though well codified in international law, norms of cooperation are only as strong as the state policies and activities that reinforce them. When countries, especially powerful ones, create rules that run counter to these norms, multilateral institutions can unravel or, worse, become irrelevant. Such unravelling can create opportunities for updated rules that better reflect changes in world politics and technology. But it can also result in a less equitable institution that favours powerful nations and provides an unfair opportunity to reap economic benefits. For this reason, developing countries have long been staunch proponents of “the province of all mankind” as a way to counterbalance the power of wealthier nations and ensure their right to benefit financially from extraction of global resources.

In the end, Russia’s withdrawal from the International Space Station‌ is but one piece of a larger set of fluid issues in space governance. ‌Russia and the United States — powerful, space-faring states — have taken steps that challenge existing rules and norms. Russia alone cannot dismantle the collective efforts to maintain space as a peaceful zone of scientific research and exploration, but the current system is in trouble and is likely to be replaced with U.S.-made regulations that allow for the future commercialisation of space. That future is the real threat to multilateralism and to humanity’s rights to the final frontier.

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