4.4 The road to outer space: A highway for space cowboys or on the verge of an orderly expansion?
“All extraterrestrial activity today is governed by a 50-year-old, Cold War-era treaty. Will governments agree on an update before the final frontier becomes the Wild West?”
Adam Mann, The Wall Street Journal, 2017 A. Mann, “Who’s in Charge of Outer Space”, Wall Street Journal, 19 May 2017, last accessed 2 June 2024 from: https://www.wsj.com/articles/whos-in-charge-of-outer-space-1495195097
In the autumn of 2025, four sets of eyes may again gaze through a window at a barren surface hidden from everyone else in the world. 57 years will have passed since astronauts Borman, Lovell and Anders become the first humans to see the far side of the moon and experience the earth rising, as part of the Apollo 8 crew. NASA’s planned Artemis II mission is at the time of writing set for September 2025.
And in September of 2026, a boot print may once more leave traces of the explorative human nature on a celestial body other than the one we stem from, as NASA plans to send a manned crew to the surface of the moon for the first time since 1972 – Artemis III.
Our journeys to the moon, both of its sides, represent a pinnacle of human ambition and technological advancement. However, as we enter the second half of the 2020s, our eyes are again directed at what lies beyond our familiar neighbor.
What form will it take? Government programs continue to be at the center. The United States’ NASA is still the leading agency and drives the US efforts, however with a strongly increasing cooperation and dependency on private companies. SpaceX, established as late as 2002, has become a core player with its Falcon lifters and Dragon and Starship spacecraft. Europe’s ESA, Russia’s Roscosmos, China’s CNSA and India’s ISRO also have advanced space programs with considerable ambitions.
Exploration, with manned flights to the Moon and Mars as the most yearned for, is likely to cause the most excitement from the public at large. Yet exploitation may well become more important in terms of economic output and as a source of economic growth. In the spring of 2017, Goldman Sachs published a widely quoted report or investment note. The investment bank was of the view that while still some time away, mining on asteroids was within the foreseeable:
“While the psychological barrier to mining asteroids is high, the actual financial and technological barriers are far lower. (..) Given the capex of mining operations on Earth, we think that financing a space mission is not outside the realm of possibility.” (1) Business Insider, Goldman Sachs: space-mining for platinum is 'more realistic than perceived', 6 April 2017, last retrieved on 2 June 2024 from: https://www.businessinsider.com/goldman-sachs-space-mining-asteroid-platinum-2017-4
This potential for private actors with commercial motivations to enter the arena of resource exploitation in space, accentuates the need for a strengthened regulation. Throughout this thesis, we have navigated the intricate existing legal landscape governing space resource activities. The relevance of the existing handful of space treaties is clear, but they do not appear to suffice on their own as governing frameworks for what is to come. The expected increased volume of space activities, including major private actors, call for enhanced and well-considered regulation. The need for clear and specific regulation to govern the activities were considered by the members of the COPOUS already in the 70s, when adopting the Moon Agreement. Presently, the future seems to hold only increased interest in the natural resources of celestial bodies.
In the introduction, the tragedy of the commons was drawn upon when contemplating what can happen if a race to obtain these resources develops, likely benefitting most the already powerful actors on the scene. Yet, this is not the worst-case scenario. Unregulated activity may potentially even lead to conflict, in all its facets.
While private companies or state agencies may not seek or wish to behave like space cowboys, chaos could become the result in a scenario where economic incentives become sufficiently strong, and the regulation is immature, unclear, or outright lacking. The uncertainty surrounding the non-appropriation principle as described particularly in Chapter 2 of this thesis is a case in point: At which point does resource exploitation – take space mining as an example - cross the line and result in a breach of the non-appropriation principle of the OST Article II? Space law as it is today has no clear answer to this question. And while we wait for the states of the world to agree new legal instruments, the materialization of substantial economic activities in outer space is drawing nearer day by day.
There has already been speculation as to whether the first dollar trillionaire could emerge from space mining.(2) NBC News, Neil deGrasse Tyson Says Space Ventures Will Spawn First Trillionaire, 3 May 2015, last retrieved on 2 June 2024 from: https://www.nbcnews.com/science/space/neil-degrasse-tyson-says-space-ventures-will-spawn-first-trillionaire-n352271 I view this prospect as exciting and bearing with it enormous possibilities that could benefit all of mankind if done wisely. Adding to our common toolbox the ability to find, develop, use, and enjoy the literally endless resources of outer space would entail an enormous expansion of humankind’s reach and potential. Calling for our half-a-century old set of treaties to be supplemented or updated may in this light seem rather mundane. Nonetheless I believe it could prove a necessary and central milestone for the success of this new chapter of human and technological development.