Outer space, once a realm only accessible to well-resourced governments, has seen a dramatic transformation in recent years. Private space enterprises, technological advancements, and the increasing value placed on space resources have catalysed an important debate on the need to revisit and revise international space law. At the heart of this discussion is the Outer Space Treaty (OST) of 1967, whose provisions have served as the legal framework governing activities in outer space for decades. However, with a rapidly evolving private space industry, there is a growing consensus that new international agreements are needed to address contemporary challenges and opportunities in the sector.
The inadequacies of the Outer Space Treaty
The OST was conceived during a time when space activities were monopolised by states, primarily for scientific exploration and strategic dominance. The treaty outlines fundamental principles such as the prohibition of national sovereignty claims over celestial bodies (Article II), demilitarisation of celestial bodies (Article IV), and freedom of exploration and use by all states without discrimination (Article I). While these principles established a cooperative foundation for outer space governance, they fall short when confronted with today's realities:
Ambiguity in resource utilisation
Article II's prohibition against national appropriation does not clearly address whether it applies to private entities or solely to states. This ambiguity creates legal uncertainty around commercial activities like mining asteroids or exploiting lunar resources.
Lack of provisions to regulate commercial activity
The OST predates the commercial space industry boom so it lacks detailed regulations concerning private sector participation which now dominates low-Earth orbit (LEO) activities.
Inadequate management of orbital debris
As LEO becomes increasingly congested with satellites and debris, there is no comprehensive mechanism under the OST that mandates debris mitigation or removal nor clear liability provisions tailored for these scenarios.
Insufficient regulatory frameworks for safety and traffic management
With increased traffic comes greater risk of collisions in outer space. However, the OST lacks comprehensive guidelines similar to maritime or aviation law necessary for safe transit management.
Non-military uses with strategic implications
While Article IV prohibits placing nuclear weapons or WMDs in orbit or on celestial bodies, it does not adequately cover other military uses such as reconnaissance satellites or cyber warfare capabilities that could exploit ambiguities within current treaty language. Even the current prohibitions on use of space for major military activity may be inadequate for the modern day without clear and refreshed enforceable commitments.
Unaddressed issues regarding planetary protection
Scientific discovery could be jeopardised without proper biocontamination protocols both from Earth microbes contaminating celestial bodies and potential extraterrestrial organisms reaching Earth.
Emerging concerns over space settlements
Though a longer term concern, as technology progresses towards enabling human settlements on other planets or moons, there are no existing provisions which set governance structures, life support systems regulation or settlers' rights.
Why new international consensus is needed
Given the limitations of what is now a decades old international legal framework, there is a clear need for a new international consensus that broadens the scope beyond state-centric models and incorporates robust mechanisms reflective of present-day endeavours:
Clarifying resource rights
A clear legal framework is needed to establish how resources can be used by both governmental entities and those in the private sector while maintaining equitable access consistent with the principles in Article I. The predictions vary, but some commentators expect space mining activity to start as soon as 2030. What benefits that brings will have to be seen, but without clear international consensus on the right to resources, there is a real possibility of very serious conflict.
Enhancing responsibility and liability
To ensure accountability in an era where non-state actors play significant roles in outer space activities including satellite deployment and potential resource extraction operations, there needs to be a clear liability framework. At present, the international framework is limited to state actors, without any clear basis for attributing liability or even resolving disputes between non-state actors. The role the private sector is playing and will play in space exploration cannot be overlooked, but without a clear framework in place to safeguard the significant private sector investment in space technology, there is a risk of international tensions and disputes.
Establishing traffic management norms
Internationally agreed-upon norms are necessary to coordinate satellite launches and effectively manage orbital pathways thus preventing collisions and contributing to overall sustainability efforts within congested areas such as LEO geostationary orbits, ensuring long-term usability critical orbits. Systems are in place to manage orbital positioning, but as more private parties engage in space related activity, does that risk the integrity of that system?
Addressing national security concerns
New treaties should openly discuss militarisation aspects associated with dual-use technologies, fostering transparency among nations and balancing security interests with peaceful applications pursuant to Article IV obligations outlined in the OST itself. It is no secret (at least not in the popular press) that space is seen as a frontier for warfare. The US made its position clear when it established one of its newer branches of the military: the US Space Force. Recent reports suggest other nations are also looking at space for military purposes, and who could have missed Russia blowing up one of its own satellites in 2021? More recently Russia has been accused by the US of potentially breaching the OST by deploying space-based weaponry, a serious charge and one which highlights the need for clear international consensus (read more about this issue here).
Implementing comprehensive environmental protection measures
Planetary protection measures should be extended to ensure preservation of celestial environments for future generations and safeguard the scientific integrity of interplanetary missions, thereby upholding universally accepted standards and enabling a growing understanding of ecological sensitivities beyond our planet's atmosphere.
Creating governance structures for off-world settlements
As we look towards habitation beyond Earth's established rule-of-law framework, it is ever more essential to ensure internationally agreed clarity on property rights, dispute resolution mechanisms, civil liberties, and ethical rules for those living and working in off-world establishments. There can be little doubt that we are in a century in which we will witness longer term off-world habitation. The rules of living need agreement and consensus now to safeguard and support those communities as they emerge. Read more.
A challenge which needs to be tackled now
Drafting new international accords regulating the human interface with outer space presents a formidable challenge, but it is nonetheless one which the global community must undertake earnestly. Adaptability and flexibility will be key for crafting viable and durable solutions aligned to support sustained growth of the space industry in a manner which benefits (as was intended by the OST) the whole of humankind. Now is the time to embrace that consensus.
