Space: The final (legal) frontier

Variath explained that this fascinating field of law today comprises a variety of international agreements, treaties, conventions, rules and regulations that govern nations in outer space. One such regulation is The Outer Space Treaty, drafted under the aegis of the United Nations, which came into effect in October 1967.

Variath said the law is reactive and comes about due to a societal need, explaining that when Sputnik 1 was launched, there was no outer space law. “Since 1919, laws recognised each country’s sovereignty over the airspace directly above its territory. This was the more traditional aerospace law but there were no clear and explicit acts or laws governing space exploration or outer space when Sputnik was launched.”

With the success of Sputnik, USA and USSR launched a series of space missions: Sputnik 2 in November 1957 which carried the first living organism into space - a dog named Laika; In January 1958, the USA launched Explorer 1; in December 1958, the USA launched the World’s first communication satellite which broadcasted a pre-recorded message from the 34th President of the United States, Dwight D. Eisenhower; between January - October 1959, USSR launched Luna 1, 2, 3 while USA launched Explorer 6. All of these missions and many others took place before space laws were in force.

“The first significant International law only came into force in 1967, with the enforcement of the Outer Space Treaty. Prior to this, there were some scant resolutions and soft laws that couldn’t be enforced. This gave these two nations an advantage over those countries that launched space missions after the laws and restrictions were in effect,” Variath said.

Today there are other treaties and regulations in space law, but the Outer Space Treaty remains the most significant international policy.

It is due to this Outer Space Treaty that no nation can legally conquer the moon; as per Article II of the treaty, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” But the law is silent on individual claims and based on this loophole, many websites will sell you a crater or two. Is it a legit deal?

Probably not. “Even though it's not explicitly mentioned, the law extends to individuals,” said Variath.

While you can’t buy real-estate on the moon, you can invest in space, much like Elon Musk and Jeff Bezos. “The space economy is valued at $6.3 billion and is estimated to reach $1.8 trillion in 2035,” Variath said.

In 2020, Musks’s SpaceX became the first private company to be significantly involved in operations that sent humans into space. For the first time in human history, a spacecraft was built and owned by a private organisation. Musk’s ambition as expressed on his X account: Over time, SpaceX will enable anyone to go to space and travel to the moon and Mars. Musks’s statements may appear far-fetched, however there are no laws that prevent any individual from visiting the moon or Mars.

According to Variath, the space economy goes far beyond the private sector’s ability to send humans to space. There are other aspects that come into play such as space mining. Space mining refers to the exploration, exploitation and utilisation of natural resources to be found on the moon, other planets and asteroids. As we exploit Earth and deplete our natural resources, many space missions have looked into the potential of asteroids for minerals, metals and other natural resources.

“Article II prohibits ‘appropriation’ but says absolutely nothing about the exploitation of space resources. This leaves it open for nations to draw their own interpretations.” In addition, Variath reveals that apart from international laws and treaties, various countries have their own national laws. “These laws are not always harmonised. Therefore, a nation could enforce its national policies over International laws or over undefined or vaguely defined aspects of International law.”

The 2021 Leonardo DiCaprio starrer, Don’t Look Up, dramatises the potential of asteroid mining. Corporates, politicians and governments, driven by greed, put monetary benefits above human life, eventually destroying the planet. While it may be a political satire and highly exaggerated, the movie displays the inherent dangers of venturing into the unknown while partnering with private players who have obvious vested interests.

Given the immense potential of space, can wars actually be fought in space? Can weapons be deployed on celestial bodies?

Article IV of the Outer Space Treaty reads:

“States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

It’s clear that wars cannot, legally, be fought in space. But the last few lines allow for any equipment - which would include nuclear technology - for peaceful exploration. However, as Variath reminded that this treaty applies only to countries that have adopted and ratified it. In such a case, if a country has not adopted this law and breaks the same, the matter could still be brought to the attention of the United Nations by a country that has signed the agreement.

There are legal loopholes too: This clause doesn't prevent the placing of surveillance equipment in space, which nations could potentially use against one another during wars; the law also makes no mention of anti-satellite weapons, which don’t fall under the definition of weapons of mass destruction.

Today, outer space is making the news as astronauts Sunita Williams and Barry ‘Butch’ Wilmore’s return to Earth faces delays. In the event that astronauts require assistance, the treaty calls for nations to step up. So, if an astronaut were to be stranded or in a difficult situation, he/she could potentially request assistance from a space station that is not owned and manned by their home country.

But while the law is clear on cooperation between nations being extended to astronauts, many other aspects remain unclear. In an ideal outer space, exploration would benefit all states and not just a few. But can such conflicts of interest, between powerful nations, be avoided? Human history - rife with conquests, annexations and land conflicts x- tells us otherwise.