The 193 member states of the United Nations are understood to have an equal voice in international law. However, powerful countries such as the United States, China, and Russia often play a disproportionate role in international law-making. Beyond state actors, billionaires such as Elon Musk and Jeff Bezos seem to be protagonists in the recent stories on space exploration, commercialization, and travel. Could Elon Musk one day own Mars? Can powerful space-faring states militarize and/or weaponize space? To answer these questions, we need to understand the laws in place to govern space and the limitations of those laws.
What is international law?
International law is a law that is applied to and developed by nation-states. Under the 1933 Montevideo Convention on the Rights and Duties of States, a state is defined as an established geographical location with a set government, a permanent population, and the ability to engage with other states. International law is developed through inter-state collaboration and becomes binding through the creation and ratification of treaties. A treaty is legally binding between nation-states if it is a written document intended to create rights and obligations for the parties involved. Ratification is a formal process that ensures the states have accepted these rights and obligations.
These treaties need to be interpreted by states based on the rules set out in Article 31 of the 1969 Vienna Convention. The document details that states must interpret them in good faith and in accordance with the ordinary meaning, context, and purpose of these treaties.
International space law and why we need it
One of the most relevant legal frameworks regarding outer space is the Outer Space Treaty (OST) of 1966. The treaty establishes that no countries can appropriate outer space, place weapons of mass destruction in the earth’s orbit, and shall use space “exclusively for peaceful purposes.” It also sets out that any activity carried out in outer space is to be the responsibility of a nation-state. In the case of non-governmental organizations, they “shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” This is to ensure that if there are any liabilities, responsibility is placed on the nations that have ratified the treaties in place.
Many other treaties and conventions build on the rules set out by the OST, as the OST is quite vague. For these new agreements to be relevant, they must use more specific language. An example of why this is necessary can be observed through the interpretation some nation-states made of Article IV of the OST: “The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.” Some states deemed “peaceful purposes” to mean “nonaggressive” or “non-hostile” rather than “nonmilitary.”
Another example of international space law can be observed through the creation of the Artemis Accords, an international agreement kickstarted by NASA and the US State Department. The agreement dictates that states may own space resources, and establishes norms of behavior to prevent future conflict on the matter. The Artemis Accords are considered to be in accordance with Article II of the OST in Article 10, as states will not be owning any celestial bodies but the resources extracted from them. NASA Administrator Jim Bridenstine further explains this concept by comparing outer space to the ocean: “. . . you can extract resources from the ocean. But that doesn’t mean you own the ocean.” The Artemis Accords further emphasizes this precedent will “benefit humankind by providing critical support for safe and sustainable operations” and “contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resources.”
What does all of this tell us?
The creation of new multilateral agreements is crucial, as human activities in outer space are ever-evolving. International rules and laws must be adapted to the current global context. Asteroid mining, resource extraction, anti-satellite weapons, and the growing influence of billionaires in space are topics that have emerged since the ratification of previous treaties. Individuals such as Elon Musk, Jeff Bezos, and Richard Branson must act in accordance with international law as well as national laws. Most importantly, their behavior must be transparent and communicated to other relevant actors to ensure security and international cooperation are upheld. The inclusion of non-state actors in international relations, and especially in space, is relatively new so these matters need to be appropriately addressed by nation-states through the creation of new conventions and treaties.
Report of the Secretary-General of the United Nations on Reducing space threats through norms, rules and principles of responsible behaviours.
NASA on International Cooperation in Outer Space.
NASA, “The Artemis Accords”
Vienna Convention on the Law of Treaties
United Nations Committee on the Peaceful Uses of Outer Space