Jeff Bezos and Wally Funk emerge from their capsule after their flight aboard the New Shepard rocket, Texas, July 20, 2021. Photo: Blue Origin/Handout via Reuters
Space is much busier than it used to be. Rockets are launching more and more satellites into orbit every year. SpaceX, the private company founded by Elon Musk, blasted more than 800 satellites into space in 2020 alone. Extraterrestrial tourism is about to take off, led by space barons Musk, Jeff Bezos, and Richard Branson, two of whom have already taken their first private space outings. The frenetic activity of space agencies and space companies around the world will extend beyond Earth’s atmosphere, too. Within a few years, the moon will see many more landers, rovers, and even boots on the lunar ground. So will Mars and eventually, perhaps even some asteroids.
It’s an exciting time, but also a contentious one. An arena once dominated by the US and Russia has seen the arrival of China and numerous other countries, with several nations establishing both a scientific and military presence in space. A burgeoning space industry, mostly led by US-based companies, is angling for opportunities to monetize Earth-observing satellites, expensive visits to the edge of space, and trips to the moon with robotic and human passengers. Space junk clutters the atmosphere. Rival countries and companies hurtle satellites through the same orbits, and they eye the same key spots on the moon where water could be harvested from ice. Anti-satellite weapons tests by China and India that have flung debris into orbit illustrate just how precarious space is.
All that is to say, things have changed considerably in the more than half century since international space diplomats hammered out the Outer Space Treaty, the agreement that continues to serve as the world’s basic framework on international space law. Before space conflicts erupt or collisions in the atmosphere make space travel unsustainable — and before pollution irreversibly tarnishes our atmosphere or other worlds — we need a new international rulebook. It’s time for the Biden administration to work with other space powers and negotiate an ambitious new space treaty for the new century.
The Outer Space Treaty was deliberately written ambiguously. It outlaws nukes and other weapons of mass destruction being deployed in space, but makes no mention of lasers, missiles, and cyber weapons. The accord appears to ban private property in space and states that no nation can claim a piece of space or lunar territory as their own, but it does not explicitly restrict the extraction of resources like water and minerals.
The Moon Agreement, which went into force in 1984, went further. It states that countries are required to inform others if they have spacecraft entering the same orbit. It declares that the exploration and use of the moon must be done for the benefit of everyone. Under the agreement, Moon explorers have to take care of the lunar environment as well. And importantly, it forbids the claiming of extraterrestrial resources as property. However, only 18 countries are party to the sweeping treaty, none of them space-faring nations.
In recent years, policies on space law have taken an industry-friendly turn, particularly in the US. The Obama administration signed the US Commercial Space Launch Competitiveness Act of 2015, also known as the Space Act, which, in theory, allows American companies to mine the moon and other celestial bodies however they wish and to keep the resources. Other countries, like Luxembourg, have followed suit. In 2020, the Trump administration went further, proposing the industry-friendly Artemis Accords, an attempt to further push the case for granting companies property rights in space. The accords comprised bilateral agreements with just 12 countries — notably without Russia and China, and without the involvement of the UN or any other international institution — putting them outside international space law. More than half a century after humans first set foot on the moon, there remains no clearly established, agreed-upon rules governing space activity.
In the absence of such a framework, the US has embraced a de facto “launch first and ask questions later” strategy. The lack of international cooperation is one reason engineers were so caught off guard in 2019, when satellites launched by SpaceX and the European Space Agency nearly crashed into one another. Experts in space law can’t even agree on major questions such as what kind of responsibility space actors have to keep space clean and uncontaminated with debris, as there’s really no framework in place.
The Biden administration has so far focused its space policy not on treaties but on “norms,” non-legally binding principles that they hope will evolve into international agreements with teeth. But it’s hard to imagine that enforceable international space policies will be adopted unless Biden explicitly and enthusiastically calls for them, while urging Russian and Chinese leaders to do the same. More likely, whatever endeavors the space industry and military decide to pursue will retroactively become policy. This is already playing out in debates about the private harvesting of resources from the moon and asteroids, the types of spacecraft companies can put in orbit, and the kinds of space and anti-satellite weapons militaries can develop.
If we were to design a new space treaty that would preserve space primarily as a place for exploration and collaboration rather than for war and commercial gain, what would it look like? It would coordinate travel and limit traffic in busy orbits in the atmosphere while also taking steps to limit the creation of space debris. (Cleaning up the mess already clogging low-Earth orbit is another story entirely.) It would also build on the Moon Agreement, prohibiting the deployment and testing of weapons — including electronic weapons — in the atmosphere. And it would prohibit deploying and testing any weapons in space, not just on the moon or other celestial bodies. It would create an independent, international organization to review proposals for mining resources and establishing colonies on the moon, Mars, and beyond.
This sounds ambitious – and it is – but it’s achievable. The Antarctic Treaty of 1961 enshrines many of the same principles for activity on Antarctica, and it still works six decades later. Public opinion on space seems to be shifting, too, with growing calls to jettison colonialist views of space exploration in favor of more egalitarian approaches. If scientists, non-governmental groups, space environmentalists and other stakeholders put pressure on the Biden administration, it could become politically feasible for the president to take a stand and jumpstart space diplomacy with the US’s rivals. To the extent that it would help make space exploration sustainable, peaceful, and beneficial to all humanity, it would be worth the cost in political capital. We only have one atmosphere, one Moon and one night sky to cherish.