Gaps in space law are fueling a Wild West attitude

The late President John Kennedy challenged America to lead in space. He said: “We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard.”
Space is hard. Last week, we learned how hard it can be when we saw what promised to be a historic mission to the moon for the private sector fail, after a successful launch.
Astrobotic Technology and the United Launch Alliance’s launch of their lunar lander, Peregrine, on a Vulcan Centaur rocket from Cape Canaveral was a shared venture by Boeing and Lockheed Martin. While they provided the design, Blue Origin of Jeff Bezos provided the engines of the rocket that was carrying the lander into space and to the moon.
The mission, part of NASA’s Artemis Program and carrying the space agency’s payloads of scientific experiments, was to make history twice: as the first American landing on the moon’s surface in over 50 years, since the Apollo mission of 1972, and the first for a private company and the commercial sector to land on the moon.
The lunar lander was supposed to soft-land on the moon’s south pole, but after a successful launch to orbit, the Peregrine developed problems with its propulsion system and the company tweeted that “the propellant leak” meant the landing was not happening.
But NASA and the private sector will have another attempt when they launch in February a second mission on the Falcon 9 rocket of Elon Musk’s SpaceX, on behalf of Intuitive Machines, carrying payloads for the American space agency. It aims to land on the moon on Feb. 22 if the mission is successful. This will make it the first private company to land on the moon, if it succeeds, after the failure of the ULA launch earlier this week.
These two missions represent the new, “different approach” that NASA is taking to space exploration. NASA administrator Bill Nelson said in a press conference last week that “we live in a golden era of exploration,” and “this time we go back to the moon in order to be able to learn, to live, to create, and to invent in order that eventually we can go to Mars” — but this time with commercial and international partners.
While upbeat and affirming that safety is NASA’s top priority, he announced what the space agency called an update to the Artemis program schedule, while the media called it a delay.
Artemis II, a crewed mission that will circle the moon and not land, was pushed until September 2025, while Artemis III is slated for 2026 now, with astronauts including the first woman and man of color to land on the south pole. Artemis IV will remain on schedule for 2028, Nelson said.
NASA officials cited technical problems related to the capsule’s heat shield and “the electronics in the life support system” that need to be studied and fixed before any mission can take off, demonstrating how hard going to space can be. NASA deputy administrator Jim Free told the press: “We will launch when we are ready.”
Regardless of the challenges and delays in NASA’s Artemis schedule, a new era has dawned on space exploration. The commercialization of space has begun and there is no turning back. The space economy is “projected to grow 74 percent by 2030, hitting a value of $642 billion,” according to the book “Space Economy” by Simonetta Di Pippo, former director of the UN Office for Outer Space Affairs.
The failed missions of today will be successful ones soon. The train has left the station for the space economy and the role of the private sector in space. While governments went to space first for inspiration and exploration for the sake of all humanity, governments and diverse private sector actors are motivated not only by exploration but by economic and commercial benefits, and with the goal of extracting the resources of the moon and other terrestrial bodies such as asteroids in the near future.
As the new era in space opens a new and promising chapter for humanity, it is important that space powers get it right because space faces being what American Defense Department officials call the three Cs: congested, contested and competitive.
Thousands of satellites roam the low Earth orbit and the geosynchronous orbit, where 80 countries have registered satellites in orbit and 11 countries have launch capability, according to NATO’s “Legal Gazette.” UNOOSA put the number of individual satellites in space at 11,330 as of June 2023, a 37.94 percent increase since January 2022.
The number of satellites in space is exploding. Consulting firm Quilty Space predicts that 22,000 new satellites will launch by 2030, and Musk’s SpaceX wants to launch 40,000. More satellites in space means more danger of collision and more debris.
The European Space Agency estimates that there are 170 million pieces of debris in orbit. While some are old and discarded satellites, or pieces of satellites that were destroyed during anti-satellite tests, others are as small as 1 mm. But even debris as small as a grain of sand can do a lot of damage, traveling at 17,000 miles per hour and presenting a great danger to other satellites, the International Space Station and other future space operations.

In the absence of a new international treaty on space, nations are trying to fill the gaps with their own space laws.

Dr. Amal Mudallali

This has led experts to warn of anarchy, bemoaning that space is becoming a graveyard with potential catastrophes if no solution is found. Many countries are working on debris monitoring and removal, but the technology is still in its infancy and the challenge is too big.
Space is also contested amid great power rivalry. Many space powers have already called space a warfighting or operational domain, and have established space forces.
But the real competition will be over the moon and its resources. The moon is believed to be rich with material essential for producing energy such as helium 3, and other material critical for clean energy on Earth and helpful in energy transition. Asteroids are even richer, with gold and other rare earth materials. Competing over them will fuel conflict in space.
Di Pippo talks in her book about the negative impact that resource extraction from asteroids can have on Earth’s economy. She cites experts predicting that gold and platinum from asteroids that are rich in metals could quickly destroy the global economy. She also cites simulations that concluded that if a “considerable extraction of material from asteroids” takes place, the “price of gold would plummet by 50 ercent with serious geopolitical consequences.”
This space race, and the entry of the commercial sector to space exploration, are happening at a time when space governance is weak and the magna carta of space law, the UN Outer Space Treaty, is outdated.
Gaps in space law are fueling a Wild West attitude when it comes to what is permissible in space, in addition to different interpretations of the laws and treaties that exist by spacefaring nations to fit their interests. In the absence of new or updated international treaties on space which take into consideration new developments in space exploration, especially the entry of the private sector, nations from Luxembourg to the UAE and Japan to the US are providing possible solutions while also inviting criticism.
In 2015, Congress passed the US Commercial Space Launch Competitiveness Act, which gives American companies the right to own space resources such as materials extracted from asteroids or the moon.
Former President Donald Trump issued an executive order, while affirming American commitment to the Outer Space Treaty, that the US “does not view space as a global commons.” He directed his secretary of state to lead US government efforts to “object to any attempt to treat the 1979 Moon Agreement as expressing customary international law.”
That agreement, which was not endorsed by any of the major spacefaring powers, calls the moon and its natural resources “the heritage of mankind,” and prohibits ownership of its resources.
The Outer Space Treaty also considers the “exploration of outer space,” including the moon and other celestial bodies, “the province of all mankind.” It affirms in its Article II that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
The Artemis Accords have their own principles that its members have to adhere to, and while they affirm their commitment to the Outer Space Treaty, they clearly state that “the extraction of space resources does not inherently constitute national appropriation under article II of the Outer Space Treaty.”
The Artemis Accords talk about establishing “safety zones” on the moon to “avoid harmful interference.” China and Russia have criticized these zones, and experts point to Article I of the Outer Space Treaty that says outer space “shall be free access to all areas of celestial bodies.” They point out that this raises questions regarding sovereignty on the moon and other celestial bodies.
We got a glimpse of what is in store for space this past week during the ULA launch when Native Americans protested that the payload carried DNA and human cremains to the moon, desecrating it and violating their beliefs because the moon is sacred to them.
The company was carrying DNA from four presidents, and cremains and other forms of DNA from around 200 people, some going to the moon while others were intended to go beyond to outer space, according to American media. NASA argued that the mission was undertaken by a private company, and it is not responsible for what a private company takes to the moon.
Actually, this is not accurate. Article VI of the Outer Space Treaty is very clear that states party to the treaty “shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities.”
The entry of the private sector to space exploration without new guidelines, laws and international treaties will open a Pandora’s box and a new domain for conflict, this time in the heavens.

• Dr. Amal Mudallali is a consultant on global issues. She is a former Lebanese ambassador to the UN.