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LUNAR AND LEGAL LANDSCAPES : THE CHALLENGE OF KEEPING LAW ON PACE WITH SPACE EXPLORATION

July 20, 2019, marked the 50th anniversary of the historic Apollo 11 Moon mission. As celebratory events commenced world-over – screenings of original footage, exhibitions of crew members’ space suits – our attention was simultaneously drawn to the future: what is the next phase of space exploration? 

In the years following the moon landing, space exploration slowed. But now, people are once again looking to our natural satellite. States, companies, entrepreneurs – all are transfixed by the star-studded potential of a profitable space industry. There’s ‘Blue Origin’, Amazon boss Jeff Bezos’ privately held rocketry firm; and Space X, Elon Musk’s equivalent. But if the business of space is to really take off, there’s one big thing missing: the laws to regulate it. Elsewhere, rapid advancements in technology continue to highlight gaps in the legal landscape. In today’s fast-changing environment, we must address the challenges of keeping law on pace with activity in the space sector.  

When it comes to profitable space exploration – and exploitation – people want what the law provides: certainty, property rights, a way of being able to settle disputes. What little law currently exists out there is international, meaning it comes with all the usual aches and pains of international law enforcement. The 1967 Outer Space Treaty, which forms the basis of international space law, says that space is the province of all mankind – no nation may claim sovereignty over it or any celestial body. Since its conception in the the sixties, the Cold War era, this treaty hasn’t been amended. This is where the question marks start to come in: once upon a time states were the only actors in space, but now we’re living in a world where companies are also up there trying to do their thing. We need laws to accommodate that. What must they tackle first? 

The first and most pressing issue is space debris. There’s a lot of crap floating around the earth – around 500,000 trackable fragments of it. Space junk can cause collisions and damage satellites, so laws are needed to make sure things go into the right orbit and don’t crash into each other. The second issue isn’t really an issue yet, but undoubtedly will be: and that’s resource extraction

Everyone wants to go to the moon. Why? It’s the perfect testing ground. The European Space Agency, China, Russia, plus a bevy of ready-and-raring private space companies – all have expressed an interest in establishing a permanent lunar base. It would provide a valuable opportunity to test what living in space for long periods of time is like; in addition to new propulsion systems, communications and life support systems. Before anyone tries to bring these things to Mars, they’re going to want to test them on the Moon first. 

Extracting water is a big one. Getting water out of those shadowed craters is crucial for drinking and generating fuel (split water into hydrogen and oxygen – i.e. rocket fuel. 

Although resource extraction isn’t a matter of urgency yet, people are already thinking pretty hard about it. Asteroid-mining ventures Planetary Resources and Deep Space Industries entered the public eye in 2012 and 2013: lustrous business models that promised mining space rocks for water and other resources would eventually turn into a trillion-dollar business. Since NASA’s space exploration program changed its focus from asteroids to the moon, these ventures have lost some of their initial buzz. It remains to be seen how successful they may be one day. Resource extraction, when it happens, will be technologically hard and financially require a great deal of capital. 

When everyone wants a piece of the pie, how do you get your own? If no one can claim sovereignty, how can anyone even begin to set up an ice mine for water extraction? 

While it’s true that no one could say “this part of the moon belongs to Britain” or “this bit is America’s”, the law could be interpreted to say: “I have property rights over certain resources, and can extract those.” 

We can use the earth as an analogy – look at the the high seas, for example. No nation owns the high seas, but you can go fishing there and claim property rights over that fish. 

The alternative is to have a very strict legal regime in place, such as the United Nations Convention on the Law of the Sea (also known as the Law of the Sea treaty). This incredibly comprehensive agreement was established in 1982 for use of the international sea bed, and is presently binding for 154 states as well as the European Community. It defines everything about how nations can use the sea bed, from business guidelines (i.e. handing out licenses), to environmental concerns, marine resource management and how the states explore the sea bed. 

According to Audiovisual Library of International Law: 

It is considered the “constitution of the oceans” and represents the result of an unprecedented, and so far never replicated, effort at codification and progressive development of international law. 

Although that sounds pretty darn good, the issue is getting nations to agree to sign up in the first place. There was an already an attempt to do something like this: the ‘moon agreement’ treaty of 1984, which flopped without enough key players onboard. Unsurprisingly, countries that have the capacity for space exploration aren’t particularly interested in restricting themselves – their sole interest is to get up there and get straight into mining resources.  

It’s all very messy so far, with the potential for a lot of conflict. Imagine a scenario where 2 different countries at conflict on earth send probes up into space and hit on the same bit of the moon that they both want to start scouring for ice. There are no rules to govern this scenario at all; nothing to determine who goes where first, who has precedence. 

There need to be some rules in place if we are to avoid lengthy court battles to resolve space clashes. At the very least we need the faintest outlines of how an entity can make a claim to start extracting resources from a specific place on the moon, and how extraction zones are defined. Beyond that the details are uncertain. We have time to work out what comes after, but with all the people putting effort into getting out there, that time will close in on us. Lawmakers must now attempt to understand how legal issues in space will operate in the future. It’s time for innovation in the legal landscape to match up to that of technology. 

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