Who owns the moon anyway? Why space is the new frontier for lawyers
Laws on mining asteroids or dumping stuff in space are virtually non-existent, which could lead to a cosmic free-for-all
When a defunct satellite orbiting Earth at an altitude of 300km was blasted into pieces last month by an Indian missile, it was not just a cloud of debris that was released by the explosion.
As US and Russian security officials fretted over whether some of the fragments might crash into the International Space Station (ISS), lawyers back on Earth were launched into a frenzy of jurisprudential excitement.
Could India be sued if the ISS, which cost an estimated $150bn to build, was destroyed or damaged? Where would such a case be heard and on what legal grounds?
Ever since the first man-made objects were hurled into space in the 1950s and 60s, the laws governing what happens there have been patchy at best. Most of the rules that do exist were drawn up in the 1967 Outer Space Treaty agreed by Washington and Moscow in one of the earliest achievements of the détente between the two superpowers that followed the 1964 removal of Nikita Krushchev.
Back then, despite the bitter rivalry of the Space Race with only two serious contenders, things were relatively straightforward. Although dozens of countries ratified the treaty, it was in effect a bilateral deal struck between Russia and the US, which actually held similar interests. Both sides, for example, grudgingly accepted their territory could be overflown by the other’s reconnaissance satellites. They agreed not to make sovereignty claims on the moon or other celestial bodies or to park nuclear missiles or other weapons of mass destruction up in space.
For a time, that worked well enough. But fast forward 52 years and it is clear that the 1967 treaty looks increasingly out of date. Not only has US and Russian dominance of outer space been undermined by emerging powers like India and China which have acquired technological capabilities of their own. Silicon Valley tycoons including Jeff Bezos and Elon Musk are firing ever larger numbers of rockets and micro-satellites into orbit – some no bigger than a Rubik’s Cube – ensuring outer space is becoming a far more crowded and complex place.
Commercial interests are increasingly competing with those of a growing number of nation states, their armed forces and security services, which have traditionally viewed space as their domain. Earlier this month, a private Israeli spacecraft crash-landed on the moon. It was funded by Morris Kahn, a telecom tycoon, and Sheldon Adelson, a Las Vegas casino billionaire. At least two private companies – MoonExpress of the US and ispace of Japan – are now planning to establish bases on the moon within the next decade. As well as luring a few high-rolling tourists, the former – backed by Silicon Valley billionaire Peter Thiel – wants to mine for gold, platinum and rare Earth metals that are thought to lie beneath the lunar surface.
This month, a Japanese spacecraft, Hayabusa2, tossed a bomb at a space rock in a bid to test out new potential methods for mining asteroids.
In 1967, mining asteroids was strictly the preserve of science fiction and comic book writers. Today it is a serious prospect – but the laws that would govern such activity are virtually non-existent. Who owns the moon, for example? Would mining its precious metals amount to appropriation – an activity banned under the existing treaty? Or could it somehow be defended as a legitimate use of outer space’s resources?Just as important, who would tax a company involved in it or police matters if things went wrong?
Such legal questions might seem arcane and it would be easy to scoff, but they are no longer idle. With hundreds of billions of dollars flowing into the industry, the commercialisation of space is proceeding at a breakneck pace. Some individual nations, including the US, have started to introduce their own laws to give companies the right to pursue commercial projects in space – fine until a dispute emerges with a non-US company. Without clear international framework, there is a risk that the process could descend into a haphazard free-for-all.
– © Telegraph Media Group Limited (2019)