Explore and use outer space under the law


James W. Pfister

Just as nation states and private entities begin to explore and exploit the mysteries of the deep seabed beneath the oceans, mankind (no longer called mankind) is about to explore and use space, satellites, Moon, Mars, comets and asteroids. It will surely be a century of discoveries.

Law has been part of space exploration since the beginning. Just before the Apollo 11 moon landing on July 24, 1969, States signed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter Outer Space Treaty) of Jan 27 October 1967, entered into force 10 October 1967 (ratified by the United States 24 May 1967).

Recently, the United States took the initiative, through the State Department and NASA, to draft the Artemis Accords on October 13, 2020, based on said Outer Space Treaty. Several states have recently joined. In December 2021, the White House released a United States Space Priorities Framework (hereafter US Framework).

My goal is to briefly introduce these documents by looking at a few items: the Outer Space Treaty, the Artemis Accords, and the American Framework. The question is whether universal law will prevail or whether grand divisions of power or “selfish exploitation” will begin to take hold.

All three documents aim for a comprehensive and universal legal world order. The Outer Space Treaty and the Artemis Accords are based on the Charter of the United Nations. Although it does not refer to the UN, the US framework does refer to “global space governance” and “to maintain and strengthen a rules-based international order for space”. All three documents emphasize the peaceful exploration and use of outer space.

Article I of the Outer Space Treaty states that exploration and utilization “…shall be carried out for the benefit and interest of all countries, regardless of their degree of economic development or science, and should be the prerogative of all mankind”. The Artemis Accords say: “…the sustainable and beneficial use of space for all mankind”. Rather, the US framework speaks of the interests of “our allies and partners” and “…for the benefit of the American people…” “Our global network of alliances and partnerships is a strategic advantage of the United States.”

The Outer Space Treaty speaks in Article I of freedom and equality in scientific research. The Artemis Accords deal with the sharing of research as a value. Again, the American framework is different. It does not deal directly with research, but with the “competitive and growing American commercial space sector”. He talks about combating “…non-market practices of foreign governments, protecting critical U.S. technologies and intellectual property, and (de) reducing reliance on strategic competitors for key space capabilities” .

Article II of the Outer Space Treaty deals with non-appropriation of space, the Moon or other celestial bodies. Section 10 of the Artemis Accords deals with the extraction and use of space resources, such as those from the surface or subsurface of the Moon, and that such extraction is not inherently a national appropriation in under the Outer Space Treaty, but that the public, the scientific community, and the UN Secretary General must be notified. Also, in Article IV of the Outer Space Treaty, no nuclear weapons or weapons of mass destruction are permitted, but the U.S. framework states that a space program “…underpins our military strength.” “. We founded the US Space Force within the Department of Defense on December 20, 1919, for deterrence, but if deterrence fails, we must “…fight for space superiority in the future”. (Gen. John Raymond, Chief of Space Force).

In this brief review, we have seen areas of potential political conflict both within the United States and with other states. Imagine the effects of the rise of China. Will universalism prevail? Or will the human tendency of conflict over sharing emerge?

I imagine that beings from other solar systems may have these same debates. We can hear of them in this century. “Do you think this mold of hopes and fears, Could find none more majestic than its peers, In these hundreds of millions of spheres?” Alfred Tennyson, “The Two Voices”, 1842.

James W. Pfister, JD University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the political science department at Eastern Michigan University. He lives in Devils Lake and can be reached at jpfister@emich.edu.


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