Introduction

 The United Nations first set its eyes on space in 1957, just months before the Soviet Union’s launch of Sputnik 1, the first man-made satellite. The United Nations had quickly realized that the impending Space Race could turn into an extraplanetary arms race between the United States and the Soviet Union. It was realized that many states, soon to have the ability to become extraplanetary by launching persons and objects into space, had the potential to use that ability for military purposes. Because of this perceived danger, and lingering fears of the world falling into yet another global conflict before the century’s end, the United Nations pursued creating a measure to ensure the peaceful use of outer space. In 1967, the United Nations consequently created the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” a foundational document that provides a majority of the international legal framework concerning the fair use of space. Two parts of the treaty are of key importance. The first, prohibits the placement of nuclear weapons, or any other weapons of mass destruction, in any extraplanetary or celestial location. The second, which will be the focus of this article, can be found in Article ll of the treaty and reads, “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.” Article ll held a significant importance in 1969, when the first humans set foot on the Moon and planted an American flag. It maintained the flag as solely a symbolic feature of the Moon, rather than a genuine claim to sovereignty.

The “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” or the “Outer Space Treaty” for short, has become the backbone for international space law. All major spacefaring states–including the United States, Russia, China, India, and the European Space Agency (ESA)–have signed the treaty meaning that all current major state actors in space have agreed to follow its conditions. However, the Outer Space Treaty is outdated and was never meant to comprehensively set rules for space exploration; rather, it served to decrease tensions between competing superpowers. There are now many more spacefaring entities than just states. Companies such as SpaceX have the ability for extraplanetary travel and are not members of the United Nations nor bound by its treaties. This, along with countries passing legislation that encourages the corporate use of space, means that future claims of property of celestial bodies and materials, or proxy claims, is imminent. With the legal framework that is currently in place, it is only a matter of time until states or entities will begin to assert control over celestial resources such as mining locations on the Moon, or locations in space such as geostationary orbits. The treaty fails to create a regulating body that has any power to enforce the treaty in space celestial bodies. This leaves spacefaring states at their own wits when it comes to overseeing the affairs of other spacefaring states, and leaves spacefaring non-states completely at their own discretion. The treaty also does not create or set any authority to rule on claims of violations which allows for ambiguities in the text, such as the undefined term “occupy”, that enable nations to control areas of space without formally claiming them. Further, the treaty is not modern enough to prevent new forms of aggression. Twenty-first century forms of hostility, such as cyberwarfare, would fail to qualify as a “ breach of the peace or act of aggression” as outlined in the treaty. Today, the Outer Space Treaty falls short of comprehensively deterring nations from making claims, whether formal or proxy, to ownership of space’s resources,and being enforceable in any meaningful way.

The issue of enforcement

The Outer Space Treaty, and international space law as a whole, struggles with a lack of enforceability. Dr. Jill Staurt is a researcher who focuses on the study of satellite regulations and the nature of state sovereignty for objects in space. Dr. Jill Staurt points out that the main deterrent to treaty violation would be along the lines of sanctions or a decrease in international credibility. A massively powerful state, the United States for example, would hardly be affected by a decrease in international credibility. Due to its overbearing international power, most states would be extremely hesitant to impose sanctions on the United States. Since most spacefaring states also have massive international power, simply threatening sanctions is not nearly enough to enforce the Outer Space Treaty. Research by the Peterson Institute for International Economics found that sanctions were only partially effective at bringing change 34 percent of the time. The current war between Russia and Ukraine is a good example of the inefficiency of sanctions. Even when levied by states and actors as powerful as the United States and the European Union, sanctions against Russia have failed to deter Russia from continuing its aggression. Russia is still determined to gain territory despite the significant impact of the sanctions. The only tools the UN currently has to enforce the backbone of space law are sanctions, that only work about a third of the time, and clearly do not demotivate a state from its territorial objectives.

The incentive to violate

There currently exists no court which hears cases on international law, and thus no way to hold states or entities which may violate the law accountable. There is no space law enforcement body or meaningful repercussions which makes the idea of deterring violations of the Outer Space Treaty a daydream. The enforcement gap exposes the possibility that the first entity with sufficient resources and technology to reach celestial resources will simply ignore the treaty altogether. There are many reasons an entity, whether it be a state or a company, would be compelled to violate the treaty. First, space is host to an unimaginable potential wealth. The Moon alone hosts a plethora of materials that could be profitable to mine. Helium-3, iron, and nickel are just three of the thousands of valuable resources that are more abundant on the Moon and on other celestial bodies than on Earth. This incentivizes an urgency to claim resources and mine celestial bodies. In fact, the European Space Agency, in partnership with ArianeGroup, announced a mission to begin mining on the Moon by 2025. Similarly, the US Commercial Space Launch Competitiveness Act of 2015, signed by former President Barack Obama, “encourages the commercial exploration and utilization of resources from asteroids obtained by US firms.” The current spacefaring states, signers of the treaty, are not even attempting to mask their intense interest in the prospect of space mining. This is not surprising since the Universities Space Research Association estimates that helium-3 is worth about $1400 per gram, compared to the current $28 per gram for gold, due to its incredible energy potential. If sustainable nuclear fusion technology is ever created, the value of helium-3, a leading fuel prospect, will only continue to increase. Thus, its abundance on the Moon makes it unsurprising that the majority of spacefaring nations, and numerous private companies have expressed interest in this opportunity. There is a reason they all want to get there early, because an object can only be mined once. It would be logical for the first capable party on the Moon to set up mining operations in the best locations. Given the value these mines could yield, the owners of the mines will go to great lengths to prevent other entities from trying to occupy that same space.

What does the Outer Space Treaty have to say on this? For example, if a US company was capable of landing on the Moon and had the ability to mine helium-3, what would stop them from finding the best deposits on the Moon and claiming that no other nation or company could mine there? Article II of the treaty states that “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.” The treaty’s language is too weak to substantiate a claim of violation. To begin with, the treaty assumes that nations or states will always be the leading spacefaring actors. If a company were to instead land on the Moon, then it would not constitute a “national” appropriation of land. Even if it was a nation that made a claim to the mines, they have a defensible argument in maintaining that they are not violating the treaty because they are not occupying the land—they are just utilizing it ‘temporarily.’ The Outer Space Treaty never provides a thorough definition for what constitutes the “use or occupation” of a celestial body. The treaty does not clarify if the taking of resources from a celestial body, and then leaving, would be considered the occupation of that land. Leaving this open to such loose interpretation could result in the outbreak of conflicts over celestial resources between disagreeing parties.

Overall, the Outer Space Treaty cannot prevent most of the conceivable territorial conflicts that could arise in outer space. The first entity to reach certain resources can surely claim rights to it with little to no recourse, and if there was recourse it would come with weak enforcement. With this, companies or states are likely to accept the possibility of menial punishment as a small risk to have for the possibility of incredible profits. According to the Space Foundation, there was a 19% jump in overall government spending on military and civilian space programs last year. In major space faring states this was even more prominent, such as in India which raised spending by 36%, or China which invested 23% more than it had the previous year. This is important because innovation scarcely happens alone. This can be seen in an article from 1922 by two Columbia University sociologists, William F. Ogburn, Dorothy Thomas, who found that the reason that so often the same sorts of advancements come from two different sources at the same time may have to do with “certain cultural preparation” that exist within that society just prior to the invention. A good example of this would be the first Space Race, which saw rapid parallel advancements in space technology happen at the same time in both the United States and the Soviet Union, likely thanks to the cultural emphasis that drove many of the best scientists to the space sector at that time. Considering the present day increase in public and private interest in space, and the expressed desire by many entities to develop space mining equipment, it is very probable that more than one entity will develop equipment for mining celestial objects around the same time. If that is true, these entities will have a desire to violate or sneak around an international treaty, an incentive to sabotage the technology of the other entity(ies), and be in a position where they are almost immune to punishments or repercussions. The Outer Space Treaty is immensely unable to prevent what seems to be an impending second space race. 

Geostationary occupation

 The fight for the right to geostationary orbits is proof that the Outer Space Treaty, and international space law as a whole, leaves outer space resources on a “first come, first serve” basis. The only formal attempt to actually challenge the Outer Space Treaty was made in 1976 with the "Declaration of the First Meeting of Equatorial Countries." This document, also known as the Bogota Declaration, was an attempt by eight equatorial nations to assert their right to the orbit territory known as a geostationary orbit. In the declaration, these eight nations sought to completely claim the orbit as their territory, claiming that it was not an outer space resource but rather part of their “natural resources.” A geostationary orbit is an orbit at the altitude of approximately 35,871 kilometers above the equator's surface, traveling in the same direction of Earth’s rotation at a speed that makes the satellite appear completely motionless over a fixed point on Earth. Thus, a satellite in this orbit may spend the entirety of its time in orbit directly over a nation that does not own it. For this reason, Colombia and seven other equatorial countries claimed this area could not be crowded out by non equatorial nations. The space in geostationary orbit is extremely limited. Because the orbit can only occur along the equator at one height, only a limited number of satellites can fit into the orbit at the same time. Additionally, sufficient space between each satellite is necessary since satellites can be interfered with by other nearby satellites, further cutting down on the space available. The significance of this is that geostationary orbits are ideal for weather satellites since they constantly have a view of the same part of the earth. They are also important for communication as they have minimal doppler effect. This means that geostationary orbits are extremely valuable. Lastly, geostationary orbits have already been used for military purposes due to their unique ability to spy on important communication satellites that are also in geostationary orbit. An example of this is the US satellite USA-207 also known as PAN, officially meaning Palladium At Night, which is so highly classified that it is not even publicly known which government agency it belongs to. The satellite has changed geostationary orbits multiple times, each time entering an orbit close to a satellite for commercial communications. It could be argued that the states that currently control the geostationary orbits are in fact “occupying” the orbits. Since those states, which currently have equipment that resides in geostationary orbit, refuse to give up the orbits, they are making proxy claims to the stationary territory in which those orbits take up. And this is only further intensified by the fact that states are using geostationary orbits for military purposes.

The Bogota Declaration highlights the treaty’s weakness. Although nations that currently occupy all geostationary orbits have never declared to own the orbit, it is unlikely for them to ever give the space up; there is a finite amount of valuable space in geostationary orbit, and much of it is already occupied. Similar to the situation mentioned for celestial mining, geostationary orbits seem to be under a “first come, first serve” basis. The Outer Space Treaty fails to prevent capable entities from permanently occupying all available geostationary orbits, as these states do not have to claim sovereignty over the orbit to absolutely control it. The Bogota Declaration gave the UN a chance to respond by creating a framework for assessing and judging claims made about the treaties potential violations. Instead of simply ignoring the attempt by the Bogota Declaration, the UN could have taken the chance to strengthen its own treaty by adding criteria to the term “occupy.” Instead, the UN chose to stay uninvolved allowing more powerful spacefaring states to continue to covertly violate the treaty.

Conclusion

When the time comes for the Outer Space Treaty to be called upon to stop an act of aggression or violation of space ownership laws, the treaty will be wholly unprepared and unable to enforce any demands the UN makes. At its inception, the Outer Space Treaty was a revolutionary document that became the essential backbone of space law. However, this treaty was created before the first man-made object even orbited the earth, and long before man ever stepped foot on a celestial body. Now, the Outer Space Treaty is unenforceable and vague, with very little potential for stopping the conflicts it was meant to prevent. The possibility of states and corporate entities to continue the act of declaring ‘phantom sovereignty’ over celestial objects and locations will never cease unless a comprehensive treaty is created and enforced. The limitless economic draw of lunar mining and celestial exploration will continue to entice parties to further violate the treaty. When occupation or disagreements inevitably occur, our legal framework will be insufficient and could result in dangerous conflict. To prevent conflict, it is imperative that a new treaty regulates these activities as well. If a new treaty were to be created by the United Nations, that treaty must be both properly enforceable and encompass not only the affairs and actions of state bodies. This could entail having signing states pledge to regulate entities within their borders or a rarely seen UN regulation on companies and entities worldwide, the likes of which are currently in place for things like human rights, labor law, and environmental protection. Although a second space race and lunar mining may seem like something out of a science fiction movie, something far away in the future, it’s a reality much closer than we realize; today is the day to protect humanity against the potential conflicts that may result from the next great exploration.

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1 United Nations. “Outer Space – UNODA.” United Nations- Office of Disarmament Affairs. United Nations. Accessed March 27, 2023. https://www.un.org/disarmament/topics/outerspace/.  

2 Ibid

3 United Nations. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.” UNODA Treaties. United Nations- Office for Disarmament Affairs. Accessed March 26, 2023. https://treaties.unoda.org/t/outer_space.  

4 Ibid

5 Stuart, Jill. “The Outer Space Treaty Has Been Remarkably Successful – but Is It Fit for the Modern Age?” The Conversation. The Conversation, March 1, 2023. https://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381. 

6 “Conclusions and Policy Recommendations - Piie.” Economic Sanctions Reconsidered, 3rd ed., Preview Chapter 6. Peterson Institute for International Economics. Accessed March 28, 2023. https://www.piie.com/publications/chapters_preview/4075/06iie4075.pdf.

7 U.S. Department of State. “The Impact of Sanctions and Export Controls on the Russian Federation”. Press Release. United States Department of State. October 20, 2022. https://www.state.gov/the-impact-of-sanctions-and-export-controls-on-the-russian-federation/

8 Panjwani, Saharsh. “Fifty Years of the Outer Space Treaty: Challenges and Need for a New Treaty.” ProjectStatecraft. ProjectStatecraft, August 24, 2021. https://www.projectstatecraft.org/post/fifty-years-of-the-outer-space-treaty-challenges-and-need-for-a-new-treaty.

9 NASA. “Significant Lunar Minerals - NASA.” Significant Lunar Minerals. NASA. Accessed March 27, 2023. https://www.nasa.gov/sites/default/files/atoms/files/significant_lunar_minerals.pdf. 

10 Jamasmie, Cecilia. “Mining the Moon Ready to Lift off by 2025.” Mining, March 1, 2019. https://www.mining.com/mining-moon-ready-lift-off-2025/.

11 Mark W Henley, “Lunar Helium-3 Fusion Resource distribution1 - Lunar and Planetary ...,” Decadal Helium-3 (Lunar and Planetary Institute), accessed March 26, 2023, https://www.lpi.usra.edu/decadal/leag/DecadalHelium3.pdf.

12 Jasamine, Cecelia. “Moon Richer in Metals than Previously Thought — NASA.” Mining. Mining.com, January 3, 2020. https://www.mining.com/moon-richer-in-metals-than-previously-thought-nasa/.

13 United Nations. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.” UNODA Treaties. United Nations- Office for Disarmament Affairs. Accessed March 26, 2023. https://treaties.unoda.org/t/outer_space.

14 Ellerbeck, Stefan. “The Space Economy Is Booming. What Benefits Can It Bring to Earth?” World Economic Forum. World Economic Forum, October 19, 2022. https://www.weforum.org/agenda/2022/10/space-economy-industry-benefits/. 

15 Ibid

16 Ogburn, William F., and Dorothy Thomas. “Are Inventions Inevitable? A Note on Social Evolution : Thomas, Dorothy : Free Download, Borrow, and Streaming.” Internet Archive. Political Science Quarterly, March 1, 1922. https://archive.org/details/jstor-2142320. Page 92

17 Lavenda, David. “Why Great Ideas Come in Pairs - Fast Company.” Fast Company, April 30, 2012. https://www.fastcompany.com/1835611/why-great-ideas-come-pairs .

18 “DECLARATION OF THE FIRST MEETING OF EQUATORIAL COUNTRIES.” 2-2-1-2 declaration of the first meeting of equatorial countries(adopted on December 3,1976), 1976. https://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html.

19 “3. The Geostationary Orbit.” ESA. European Space Agency. Accessed March 27, 2023. https://www.esa.int/Education/3._The_geostationary_orbit.

20 Couvault, Craig. “Secret PAN satellite leads Cape milspace launch surge”. Spaceflight Now. May 26, 2009. https://spaceflightnow.com/news/n0905/26milspace/ 

21 Langbroek, Marco. PAN (NEMESIS 1) is on the move again. September 14, 2021. https://sattrackcam.blogspot.com/2021/09/pan-nemesis-1-is-on-move-again.html

22 Kamminga, Menno T. “Corporate Obligations under International Law ''. OHCHR (Office of the High Commissioner on Human Rights, UN). Do Companies Have Obligations in International LawOHCHRhttps://www2.ohchr.org › docs › kamminga

Works Cited

“3. The Geostationary Orbit.” ESA. European Space Agency. Accessed March 27, 2023. https://www.esa.int/Education/3._The_geostationary_orbit. 

“Conclusions and Policy Recommendations - Piie.” Economic Sanctions Reconsidered, 3rd ed., Preview Chapter 6. Peterson Institute for International Economics. Accessed March 28, 2023. https://www.piie.com/publications/chapters_preview/4075/06iie4075.pdf.

Couvault, Craig. “Secret PAN satellite leads Cape milspace launch surge”. Spaceflight Now. May 26, 2009. https://spaceflightnow.com/news/n0905/26milspace/

“DECLARATION OF THE FIRST MEETING OF EQUATORIAL COUNTRIES.” 2-2-1-2 declaration of the first meeting of equatorial countries(adopted on December 3,1976), 1976. https://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html.

Ellerbeck, Stefan. “The Space Economy Is Booming. What Benefits Can It Bring to Earth?” World Economic Forum. World Economic Forum, October 19, 2022. https://www.weforum.org/agenda/2022/10/space-economy-industry-benefits/.

Henley, Mark W. “Lunar Helium-3 Fusion Resource distribution1 - Lunar and Planetary ...” Decadal Helium-3. Lunar and Planetary Institute. Accessed March 26, 2023. https://www.lpi.usra.edu/decadal/leag/DecadalHelium3.pdf.

Jamasmie, Cecilia. “Mining the Moon Ready to Lift off by 2025.” Mining, March 1, 2019. https://www.mining.com/mining-moon-ready-lift-off-2025/.

Jasamine, Cecelia. “Moon Richer in Metals than Previously Thought — NASA.” Mining. Mining.com, January 3, 2020. https://www.mining.com/moon-richer-in-metals-than-previously-thought-nasa/.

Kamminga, Menno T. “Corporate Obligations under International Law ''. OHCHR (Office of the High Commissioner on Human Rights, UN). https://www2.ohchr.org/english/issues/globalization/business/docs/kamminga.doc

Langbroek, Marco. PAN (NEMESIS 1) is on the move again. September 14, 2021. https://sattrackcam.blogspot.com/2021/09/pan-nemesis-1-is-on-move-again.html

Lavenda, David. “Why Great Ideas Come in Pairs - Fast Company.” Fast Company, April 30, 2012. https://www.fastcompany.com/1835611/why-great-ideas-come-pairs.

NASA. “Significant Lunar Minerals - NASA.” Significant Lunar Minerals. NASA. Accessed March 27, 2023. https://www.nasa.gov/sites/default/files/atoms/files/significant_lunar_minerals.pdf.

Ogburn, William F., and Dorothy Thomas. “Are Inventions Inevitable? A Note on Social Evolution : Thomas, Dorothy : Free Download, Borrow, and Streaming.” Internet Archive. Political Science Quarterly, March 1, 1922. https://archive.org/details/jstor-2142320. Page 92

Panjwani, Saharsh. “Fifty Years of the Outer Space Treaty: Challenges and Need for a New Treaty.” ProjectStatecraft. ProjectStatecraft, August 24, 2021. https://www.projectstatecraft.org/post/fifty-years-of-the-outer-space-treaty-challenges-and-need-for-a-new-treaty.

Stuart, Jill. “The Outer Space Treaty Has Been Remarkably Successful – but Is It Fit for the Modern Age?” The Conversation. The Conversation, March 1, 2023. https://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381.

United Nations. “Outer Space – UNODA.” United Nations- Office of Disarmament Affairs. United Nations. Accessed March 27, 2023. https://www.un.org/disarmament/topics/outerspace/.

United Nations. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.” UNODA Treaties. United Nations- Office for Disarmament Affairs. Accessed March 26, 2023. https://treaties.unoda.org/t/outer_space.

U.S. Department of State. “The Impact of Sanctions and Export Controls on the Russian Federation”. Press Release. United States Department of State. October 20, 2022. https://www.state.gov/the-impact-of-sanctions-and-export-controls-on-the-russian-federation/