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On 6 December 2020, in the early hours of the morning, a capsule resembling a rice cooker fell from the sky and landed at the Royal Australian Air Force’s Woomera test site in South Australia. This capsule contained 5.4 grammes of samples taken by the Japanese space probe Hayabusa2 from the subsurface of the near-Earth asteroid Ryugu. The 40 centimetre capsule was released by Hayabusa2 during a flyby of Earth, before setting off on another ten-year mission. Researchers who analysed the samples described them as some of the oldest and most primitive material ever available for laboratory study, providing a unique opportunity to explore the origin and evolution of our solar system.

The success of the mission was a significant step forward in the field of scientific discovery and in our endeavour to unravel the mysteries of the cosmos. It was also a convincing demonstration of the advanced technical capabilities of the space agencies, proving their ability to accomplish complex tasks such as landing on asteroids, extracting valuable resources and returning them safely to Earth. This remarkable achievement has sparked great enthusiasm in the private sector, and many believe that space mining could potentially generate billions of dollars in profits. It is estimated that the development of the resources of the 10 least expensive near-Earth asteroids alone could result in a profit of 1.5 trillion US dollars.

With the tantalising prospect of such astronomical profits, the lure of staking a claim to space is undeniably strong. However, the question arises: are there valid reasons to allow the ownership of resources and territories in space? On what basis, if any, can a nation or organisation claim ownership of a particular location or resource in the vast expanse of the cosmos?

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Capsule released by Hayabusa2 after landing © JAXA

| THE POWER AND PERILS OF OWNERSHIP

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John Locke (1632-1704) © Hermitage Museum

The way property rights are managed in space has significant implications for the scale and nature of exploration, scientific research and commercial activity, as well as the distribution of wealth on Earth. The laws that are establish to govern property in space will surely determine the incentives for states and private companies to mine space resources, explore celestial bodies and deploy satellites in Earth orbit. In other words, the rules we establish for space ownership will determine the motivations and behaviour of key players in the space industry, with far-reaching consequences for the future of humanity in the cosmos.

On the one hand, ownership is beneficial because it motivates individuals and organisations to use land and resources as productively as possible. This concept is reflected in various forms by the English Enlightenment philosopher John Locke. He holds that property enables individuals to reap the fruits of their labour rather than having their efforts arbitrarily confiscated by others. Ownership provides the security and stability needed for more productive, long-term utilisation of land and resources. In addition, the profitability of space tourism, mining, communications systems and other ventures means that more resources will be available to fund space exploration and scientific research, enhancing our knowledge and capabilities in these areas.

However, ownership can also have disadvantages. While it can incentivise productive use, in certain cases it can also lead to less productive use. For example, if a researcher obtains exclusive rights to mine an asteroid or build a satellite network, public access to the resulting benefits may be hindered because the researcher would no longer need to act as urgently before others do. Regardless of whether or not ownership promotes productivity, it is clear that it could exacerbate inequality on Earth. The ability to claim ownership of space resources or locations is only open to those who already have significant wealth, i.e. a select group of advanced economies and private sector companies. Under current circumstances, freeing up space ownership could simply allow the wealthy to accumulate even more wealth.

| RIGHTS AND RESPONSABILITIES

The term “property” may prove to be too broad when trying to describe the complicated economic and moral implications at stake. It is too broad and does not provide the necessary precision to recognise the specific boundaries set out in the current international space treaties.

Joshua Cohen © David Shankbone

Consider the insightful breakdown presented by Joshua Cohen, a contemporary political philosopher, in his lectures at MIT in the early 2000s. Cohen proposed three distinct categories of property rights to be considered:

  • Control rights: In the area of property, control rights form the basis, giving individuals the moral and legal power to prevent others from taking or using their property without their consent. This form of property corresponds to the traditional understanding of the term.
  • Use rights: In parallel to rights of control, rights of use come into play, giving individuals the privilege to use certain facilities, be it a park, a river or even celestial bodies such as the moon or places in low earth orbit. Rights of use do not presuppose ownership in the traditional sense.
  • Benefit rights: Finally, usufructuary rights are claims to the fruits and benefits that result from one’s efforts or property. These include the rewards obtained through personal endeavours, such as income from work, as well as the profits resulting from one’s own assets, such as income from oil reserves on one’s own land.

Although the existing space treaties are often criticised for their lofty goals, their limited practical guidelines, and their inherent ambiguity regarding space ownership, viewing the treaties through the lens of these three property rights can provide valuable insights. By examining these treaties in the context of rights of control, use and benefit, one can begin to unravel the intricate web of space ownership and illuminate the underlying principles and implications.

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President Lyndon B. Johnson witnessing the signing of the Outer Space Treaty in 1967 by delegates from the U.S., the U.K., and the U.S.S.R. © United Nations

Take, for example, the Outer Space Treaty of 1967, which boldly proclaims that “the “exploration and utilisation of outer space shall be for the benefit of all peoples.” This landmark treaty, supported by the major spacefaring nations, explicitly states in Article II that outer space, including celestial bodies such as the moon, cannot be subject to national appropriation. Consequently, rights of control are effectively excluded. Under the terms of the treaty, space-faring nations are prohibited from laying claim to specific locations or resources in outer space, thereby preventing the exclusion of others.

However, the treaty allows states to operate in outer space, enabling the potential extraction of resources and occupation of land without claiming ownership. While the wording of the treaty is open to interpretation, it is consistent with the concept of usufructuary rights when it comes to outer space and its invaluable resources. Given the treaty’s inherent ambiguities, it seems consistent with an approach that emphasises the rights to use space rather than asserting control over it.

A somewhat more explicit set of guidelines can be found in the Moon Agreement, which was adopted by the United Nations General Assembly in 1979. This treaty presents a vision of the moon and other celestial bodies as the common heritage of humankind. Similar to the Outer Space Treaty, the Moon Agreement explicitly prohibits ownership in the sense of control rights. However, it goes a step further by taking up the concept of utilisation rights and introducing a principle of relatively equitable distribution of the benefits derived from space resources that smacks of Lockean influence.

According to the agreement, there should be an “equitable” sharing of the benefits from resource extraction, with a particular emphasis on taking into account the needs and interests of developing countries. In addition, the Moon Agreement recognises that those countries that have contributed directly or indirectly to lunar exploration should be given “special consideration” in the distribution of benefits. This recognition reflects the principle that those who invest resources and take risks in the extraction of lunar resources should be rewarded for their efforts. Thus, the Moon Agreement contains both egalitarian principles and recognition of the importance of investment and risk-taking in the extraction of resources.

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President Barack Obama visiting the NASA Kennedy Space Center in Cape Canaveral in 2010 © NASA/Bill Ingalls

While the Moon Agreement represents a laudable attempt to create a more equitable framework for the distribution of space benefits while recognising the importance of investment and effort, it suffers from one significant drawback: the absence of three prominent spacefaring nations – the United States, Russia and China – as signatories. The United States, in particular, takes a view that sees space not as a pristine national park, but rather as an untamed frontier that offers a wealth of opportunities for those brave enough to embark on the journey. However, caution should be exercised here, as this view risks repeating the reckless and unjust patterns of European and American colonial activity – a history that should ideally be avoided.

Nonetheless, in 2015, President Barack Obama signed the US Commercial Space Launch Competitiveness Act, which grants private companies the right to use and claim non-living resources from asteroids, moons and other celestial bodies, though not the bodies themselves. Similar laws have been enacted in countries such as Japan, Luxembourg and the United Arab Emirates, raising fears that space ownership issues could be resolved through a “first mover advantage” paradigm. Essentially, those who reach the stars first can claim ownership rights to whatever they can get out of them. This trend highlights the evolving landscape of space ownership and the potential impact this could have on future space exploration and resource utilisation.

| OUTER SPACE: THE NEW BATTLEFIELD?

Due to the widespread presence of missiles and satellites, the threat to outer space is growing, leading to an escalation of militarisation and the arms race in this area. This raises the important question of whether it is possible to prevent the transition from the militarisation of space to its weaponisation and thus prevent the outbreak of a “space war” in the future.

The United Nations has made numerous efforts to prevent the proliferation of weapons in space and to enact regulations against their use against and by space objects. The UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) focusses on issues related to the commercial and civilian use of outer space, while discussions on military concerns and challenges are held at the Conference on Disarmament and the UN General Assembly. These platforms actively pursue initiatives aimed at preventing an arms race in outer space.

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Space Force Gen. John W. Raymond © airandspaceforces.com/Mike Tsukamoto

The conflict in Ukraine has certainly highlighted the increasing importance of space capabilities for ground-based armies. In October 2022, General Jay Raymond, the then head of the US Space Force, emphasised in an interview with the BBC that “this conflict is the first case in which commercial space capabilities have played a significant role”. It is also the first major conflict in which both opposing sides have developed a strong dependence on space assets.

General Raymond, who was naturally reluctant to disclose specific details, pointed out that the US and its allies are supporting Ukraine in various ways: “Space assets are being used to enable precision strikes and provide early warning systems for missile threats that could potentially strike the United States, its allies or partners”.

There are currently over 5,000 satellites in space, most of which serve commercial purposes. However, there are also a significant number of military satellites, of which the United States, Russia and China have the largest number.

Ukraine has no military satellites, but has received extensive support from Western states in a variety of forms. One of these is the provision of intelligence, surveillance and reconnaissance (ISR) capabilities. Ukraine has gained access to an unprecedented amount of commercial satellite imagery, enabling better monitoring and surveillance.

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Air Vice-Marshal Paul Godfrey © United States Navy

According to Air Vice-Marshal, the head of the UK Space Command, in addition to commercial and civilian intelligence, surveillance and reconnaissance (ISR) support for Ukraine, numerous countries with military space capabilities are also closely monitoring the situation in Ukraine.

The use of space-based ISR played a crucial role in identifying the initial deployment of Russian troops prior to the invasion on 24 February, as well as monitoring the ongoing movement of troops and military equipment. Satellites have played an important role in tracking Russian warships in the Black Sea, including the cruiser Moskva, which was eventually sunk by Ukraine.

Air Vice-Marshal Godfrey emphasised that ISR satellites are also crucial for “telling the truth” about the war.

He cited the massacre in Bucha, near the Ukrainian capital Kyiv, as an example. Russian claims that the bodies of civilians were already lying in the street when they arrived have been disproved by the time-stamped satellite images, which prove the opposite.

| TROUBLING DEVELOPMENTS

As recently as February 2024, the US expressed concern and warnings about Russia’s alleged development of a nuclear anti-satellite weapon (Cosmos 2553), whilst also emphasising that it has not yet been deployed. In Moscow’s view, the US was using the claims about this weapon as a pretext to force Congress to authorise additional aid for Ukraine by any means necessary.

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Cosmos-2553 © Ministry of Defense of the Russian Federation

Be that as it may, on April 25, 2024 at the UN Security Council, Russia while reaffirming its strong commitment to the existing treaty, used its right of veto to prevent a resolution calling on all nations to prevent the escalation of an arms race in outer space. The resolution, co-sponsored by the US and Japan, was intended to reaffirm a principle originally laid down in the 1967 Outer Space Treaty.

The draft resolution also emphasises the importance of complying with the Outer Space Treaty, which prohibits the placement of objects containing nuclear weapons or other weapons of mass destruction in Earth orbit.

Of the 15 members of the UN Security Council, 13 voted in favour, while Russia, as one of the five permanent members with veto power, voted against the resolution. China decided to abstain from voting.

The US ambassador to the United Nations, Linda Thomas-Greenfield, expressed her bewilderment at Russia’s decision to veto the resolution. She described the resolution as a clear reaffirmation of a legally binding commitment and said, “President Putin himself had publicly stated that Russia had no plans to deploy nuclear weapons in space. So, this veto begs the question, why? Why, if you are following the rules, would you not support a resolution that reaffirms them?”

She expressed the suspicion that there may be hidden motives behind the veto and asked what Russia could possibly be hiding.

The increasing dependence on space gives rise to fears that disputes could spread beyond the terrestrial, maritime and aerial domains. What seems certain though, is that the militarisation of space is well under way.

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Ambassador Linda Thomas-Greenfield © USUN/Don Conahan

| A JUST DISTRIBUTUON OF SPACE

The reality is that current circumstances suggest that space and its resources are shared out on a “first-mover advantage” basis, so that whoever takes possession of them first gains ownership of them. However, this approach departs from the high ideals expressed in previous treaties. Space exploration is usually promoted as a way to expand our understanding of the universe and ourselves, and to serve the betterment of humankind as a whole. These ideals have led many people to accept, if not wholeheartedly embrace, the public costs and risks associated with space exploration. Regrettably, we do not always live up to these standards.

Granting rights of use and possibly even control to both public and private organisations undeniably benefits certain parties. For example, SpaceX’s Starlink project, with its deployment of 12,000 communications satellites in low-Earth orbit, has facilitated internet access for remote communities and even assisted Ukraine in its defence against Russian attacks. By allowing near-Earth space mining, we create opportunities for greater space exploration as spacecraft can gather the necessary resources en route, reducing the need for resupply from Earth. This opens up the potential for the discovery of minerals that can contribute to domestic industry.

However, it must be recognised that most of these benefits will primarily accrue to wealthy companies and nations that are able to actively participate, exacerbating the growing divide between wealthy societies and those that lack resources. As a result, the less well-endowed societies will fall further and further behind, exacerbating existing inequalities.

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Starlink satellites before deployment © SpaceX

At present, investors are faced with the dilemma of which space sector to invest in, as all of them seem to have great potential with the prospect of considerable profits. The question remains whether to favour asteroid mining, space lifts, the colonisation of Mars or high-speed global satellite internet. While these decisions may seem insignificant given the primary focus on financial gain and the uncertainty of short-term profitability, they will ultimately determine our future. It’s about the kind of space we envision for ourselves and future generations.

There are currently well over 2000 operational satellites in low Earth orbit. As part of the Starlink project, up to 12,000 additional satellites are to be placed in low Earth orbit, with an application submitted for a further 30,000 satellites. At this rate, low Earth orbit is likely to be saturated in the near future. It is worth noting that SpaceX is not the only player trying to capitalise on this burgeoning market. Competitors such as Facebook’s Athena project, O3b Networks’ OneWeb, Softbank and Qualcomm are already in the game and plan to deploy their own constellations of several thousand satellites in the coming years.

We have also reached a turning point; China is gradually catching up with the United States as India and Japan continue to become serious players in low-orbit satellite technology. Hundreds of companies have been created to support all these new programmes. And as in any fast-growing sector, there will be winners and losers in the years to come.

| WILL THERE BE ENOUGH SPACE?

As we expand our presence in space, we run the risk of repeating the same mistakes we made on Earth. Will we pollute low Earth orbit to such an extent that navigating to the moon becomes a treacherous obstacle course of satellites? And what is the future of space tourism and its impact on the space environment? As the exploration and development of space progresses, it is crucial to reflect on these important issues.

The crucial difference between the new and old space travel may not lie in the cost of launching a satellite into orbit or in the ability to land a rocket stage on a sea-based platform. The real difference may be ethical. If there is innovation, it should focus on discovering new ways to utilise space, with a particular focus on avoiding repeating the mistakes made on Earth.

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Hayabusa2 and Ryugu asteroid © JAXA/Akihiro Ikeshita

How can we work together to ensure that all societies have equal opportunities and access to the benefits of space? Is it possible to create an ownership framework for space that goes beyond mere competition for control of its resources? The encouraging news is that we have the ability to do so. The provisions of the Moon Agreement may be complicated, but they establish a precedent for a more egalitarian distribution of the benefits arising from space exploration. The difficult reality, however, is that realising these egalitarian ideals in space would require significant changes to national and international laws, particularly for the leading spacefaring nations. Given the current geopolitical situation, the realisation of such change may prove to be a distant goal.

Nevertheless, it is not inconceivable that by the time the Japanese Hayabusa2 mission returns to Earth in 2030, the world could have made significant progress in clarifying and establishing equity in the ownership of space. The key question is whether space nations and organisations are able to have meaningful discussions and reach agreements on ownership arrangements that are consistent with the aspirational ideals of the Moon Agreement.

Many may view this moral endeavour as an impossible goal, a moonshot that cannot be achieved. But as the 18th century philosopher Jean-Jacques Rousseau observed, “The limits of the possible in moral matters are less narrow than we think.”

Our limitations, our flaws, our biases and our self-interests may limit our moral vision, but we have the ability to look upward and imagine a better future that benefits all of humanity.

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