Who will own outer space?
As nations and companies race to explore and exploit outer space, the battle to establish rules and ownership of resources intensifies.
In a nutshell
- Nations are scrambling to regulate the boom in space activity
- There is no consensus on important aspects of space development
- Private actors will likely play an important role in shaping future norms
Space, the “final frontier,” is no longer a vision of the future confined to the fictional world of Star Trek. In fields ranging from space tourism to space mining, countries, companies and international organizations are scrambling to address the reality of the new Space Age. Outer space, which includes the moon, asteroids and other celestial bodies, is considered beyond the national jurisdiction of any one state, but the rules made here on Earth will determine the future of space for our planet. Who will make those rules?
Where does space begin?
Who decides, for example, where space begins? Most will agree that space begins where Earth’s atmosphere ends, but there is no international agreement determining where that is exactly. The United States military and the National Aeronautics and Space Administration (NASA) define space as starting 80 kilometers (50 miles) above Earth’s surface. But others, including the World Air Sports Federation (FAI), which sets the rules for certifying world aeronautical and astronautical records, use the Karman Line, 100 kilometers (62 miles) up.
Fortunately, not much rides on this – except that Jeff Bezos, who flew a Blue Origin spacecraft above 100 kilometers, can claim to the world that he has been in outer space whereas Richard Branson, who flew on a Virgin Galactic rocket plane at just above 80 kilometers, only has bragging rights in the U.S. There are, however, more critical questions at stake.
Legal rules for inner and outer space
When the Soviet Union launched Sputnik, the first artificial satellite to orbit Earth, in 1957, the international community was already contemplating the legal issues surrounding outer space. Regulations on “inner space” are set by the International Civil Aviation Organization, a specialized agency of the United Nations founded in 1947. In 1958, to resolve “outer space” issues, the United Nations General Assembly set up the Committee on the Peaceful Uses of Outer Space (COPUOS) and the United Nations Office for Outer Space Affairs (UNOOSA).
Under their auspices, the Outer Space Treaty (OST) was negotiated, entering into force in 1967. It says the “exploration and use” of outer space is the “province of all mankind,” and prohibits “national appropriation” of the Moon or other celestial bodies. But it is unclear whether property rights can be acquired over resources extracted from space, such as from regolith, a loose layer of rock and dust that can be a source for oxygen and hydrogen. Mining resources for fuel and infrastructure in outer space will be critical to space exploration because lifting such materials through Earth’s gravity is logistically and financially prohibitive.
Space mining and non-appropriation
Some countries interpret “non-appropriation” to mean that extracted resources are the “common heritage of mankind,” requiring an international regime to ensure that all states benefit. Other countries, in the absence of a clarifying international agreement, are passing national legislation to give their citizens and companies the right to own, use and sell any space resource obtained in accordance with international obligations.
Although the U.S. was the first to pass such legislation, in 2015, other countries quickly followed. Luxembourg’s law encourages space mining companies to incorporate there, and Japan granted permission to commercial entities, such as lunar exploration company ispace, to extract and use space resources. By passing such legislation, these countries are providing companies and investors with the assurances they need before spending vast resources to advance commercial space mining. They are also shaping the accepted interpretation of what “appropriation” means.
Facts & figures
The Karman Line
To further bolster the U.S. position, NASA is encouraging countries to sign up to the Artemis Accords, a non-binding political commitment to a set of principles, which includes an affirmation that the extraction of space resources does not “inherently constitute national appropriation.” It proposes that “safety zones” be allowed around mining activity, like those on Earth for offshore oil drilling in international waters.
The Artemis Accords were condemned openly by Russia and unofficially by China, and many of the G77 countries were initially hesitant to join. As of July 2024, 43 states have signed the Accords, including India and many South American countries that had previously seemed to be aligning with China. Where rules are unclear, countries can steer the outcome of future negotiations by developing consensus beforehand, such as through the Artemis Accords.
Satellites and mega-constellations
Satellites provide critical communications and imagery for governments and the military, but also for companies and individuals – from farmers who need soil and weather information, to drivers looking for entertainment on their satellite car radio. All non-governmental entities need a license from their state regulatory body, such as America’s Federal Communications Commission, to launch a satellite. The International Telecommunications Union (ITU), a specialized agency of the UN, manages and approves satellite slots and assigns frequencies.
About 12 percent of satellites, usually large ones, are in Geostationary Equatorial Orbit (GEO) but latency and cost have led to a preference for Low Earth Orbit (LEO). About 84 percent of satellites are in LEO, which is closer to Earth and therefore less expensive to place in orbit – particularly for smaller nanosatellites. Data can be transmitted with minimal delay, making it a particularly popular orbit, especially for mobile phone service.
The demand for ever more and better data has led to “mega-constellations,” which provide low-cost, low-latency, high-bandwidth internet connectivity anywhere in the world. This demand has increased the number of satellites from the 33 launched in the 1960s to approximately 9,000 orbiting today. SpaceX’s Starlink constellation is the largest, with over 5,000 operational satellites and plans for up to 42,000. A distant second is OneWeb, with over 600 satellites and plans for a mega-constellation of 7,000. China has plans for three constellations, all with 10,000-plus satellites. At what point will we run out of “space” in outer space? The race is on in LEO, with some countries submitting extreme mega-constellation filings to the ITU, to reserve slots or make money selling them to others.
Mega-constellations threaten astronomy by blighting the skies with light that hampers discoveries and observations. Some satellite companies are taking brightness mitigation seriously, but there is no requirement to do so, and it adds to the costs. Until international standards are set, companies will shop around to find states with the fewest regulations and lax enforcement, similar to flags of convenience that cause safety and environmental hazards in international shipping.
Space debris
The increase in satellites has raised issues of space debris and collisions, both in space and on Earth. Satellites should have an end-of-life plan, to either boost them to “graveyard” orbits, or send them back toward Earth to burn up on re-entry. Even that is not foolproof: One Florida family is suing NASA over debris from the International Space Station, which did not completely burn up, and damaged their home three years after it was ejected.
The 1974 Convention on Registration of Objects Launched into Outer Space empowers the UN Secretary-General to maintain a register, and the 1972 Convention on International Liability For Damage Caused by Space Objects ensures that each country is responsible for any damage, including by private commercial ventures based on its soil.
But thousands of defunct satellites with no disposal plans are cluttering up orbits and are susceptible to collisions – each of which leads to more debris. The number of particles is now in the millions; some are trackable, allowing the International Space Station and satellite operators to move out of the way, but pieces that are too small to track can still cause damage.
COPUOS set up Space Debris Mitigation Guidelines in 2007; they are not mandatory, but most spacefaring countries have implemented them as binding requirements domestically. In addition, remediation measures such as Active Debris Removal are necessary to allow for safe future space exploration and use.
Weapons in space
In 1962, a U.S. nuclear test in space disabled six satellites and released radiation harmful to humans. This led to the 1963 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and under Water (the Limited Test Ban Treaty). But there are no such sweeping rules for conventional weapons.
In 1983, over the objections of NASA, the U.S. Air Force tested an anti-satellite device that created both trackable and untrackable debris. This validated concerns about the “Kessler syndrome” in which debris from collisions would lead to further collisions ad infinitum thereby closing safe access to space for generations. China conducted anti-satellite weapons tests in 2007, India in 2019 and Russia in 2021, creating significant debris that continues to endanger those countries’ own satellites, as well as astronauts, cosmonauts and China’s taikonauts alike.
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In April 2022, U.S. Vice President Kamala Harris announced that the U.S. “commits not to conduct destructive, direct-ascent anti-satellite missile testing” in an effort to establish a new international norm. Many countries have now made similar declarations that recognize the debris problem. However, the U.S. made no commitments on space-based kinetic anti-satellite (ASAT) weapons, non-kinetic cyber-attacks, lasers or jamming, which have been an increasing threat from unfriendly states. The U.S. identified Russia’s Cosmos 2576 satellite, launched in May 2024 in a co-planar orbit with a U.S. national security satellite, as a threatening counter-space weapon. This follows increased GPS signal jamming by Russia’s military affecting thousands of civilian flights and violating international agreements.
As countries recognize the “mutual destruction” threat of space debris, they become amenable to international agreements prohibiting actions that could cause such debris. But no country wants to rule out the development of defense capabilities that it might need if others renege on treaties.
Scenarios
While no single country may legally claim ownership of outer space, the rules being made will shape the future of space exploration and use. Determined leadership was needed to create the rules-based international world order that kept the peace after World War II. So too, the political will of the international community and the values of the countries that lead it will be consequential in establishing the rules for the future of space.
Very likely: The U.S. leads
Elon Musk and SpaceX have reinvigorated the U.S. space program by unleashing the creative power of risk-taking individuals and private companies. The U.S. Space Force has now embraced open competition for its launches, encouraging new companies to bid. When the International Space Station (ISS) is deorbited around 2030, commercial space stations are planned that will focus on in-space manufacturing, experimentation and tourism. America’s ability to harness commercial entrepreneurship likely means that it will maintain its leadership position in space technology. In addition, U.S. diplomatic efforts to guide consensus ahead of rulemaking will ensure that future international agreements align with the Outer Space Treaty and U.S. values – including peaceful exploration of space, transparency and the right for states to allow the private sector to engage in commercial activities.
Lack of consensus will lead to bifurcation such as the disagreement over where outer space begins, and risks the proliferation of inconsistent and conflicting rules. If that happens, individual states will set the rules for companies in their jurisdiction. The desire for companies to remain competitive will lead to jurisdiction shopping and cutting corners; countries with lower standards or poor enforcement will be the weakest link, increasing the potential for environmental problems and high-impact, low-probability events. Unless the international community moves quickly to establish new rules for the fast-moving space industry, this bifurcation will occur with negative results. U.S. leadership will matter.
Likely: Russia plays the spoiler
The 1975 ‘handshake in space’ between the U.S. Apollo spacecraft astronaut and the Soviet Soyuz capsule cosmonaut was the beginning of a cooperative space governance regime despite the Cold War on Earth. After Russia’s invasion of Ukraine, areas of cooperation have been phased out and the demise of the ISS will seal the end of that era. Russia has had to significantly curtail its space industry due to sanctions imposed because of the invasion and instead has agreed to work with China on a lunar research station. Although not capable of a leadership role, Russia will continue to be a drag on progressing the space governance regime by playing the spoiler and violating international rules. This unhelpful role is likely to continue. The outcome in Ukraine will determine whether the rules-based international order extends into outer space.
Less likely: China leads
As an autocracy, China can focus single-mindedly on accomplishing its objectives. The U.S. Global Positioning Satellite (GPS) system was the gold standard in global positioning, navigation and timing until recently, when China embarked on a strategic effort to replace it with its own Beidou Navigation System (BDS). Without an equally determined effort by the U.S., China’s superior system will dominate, giving it a commercial as well as military advantage. Still, in other areas, China will not gain dominance for at least a decade. Beijing is seeking to extend its Belt and Road engagement efforts with other countries into space, but as the signatories to the Artemis Accords grow – despite Chinese pressure to the contrary – it is unclear whether they will follow. China’s rising power, actions in the South China Sea, and threats against Taiwan have tipped the scales for the U.S. away from cooperation and toward competition. Concerns about China benefitting militarily from cooperative programs with the U.S. have resulted in the Wolf Amendment, which prohibits NASA from bilateral cooperation with China without preauthorization. This is leading to a more competitive approach to space exploration and use and increases the likelihood of the tensions and strife on Earth continuing into outer space, unless and until a new international treaty is negotiated.
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