Creating laws for space’s ‘Wild West’

Timiebi Aganaba-Jeanty says that outer space has become “totally Wild West” as a growing number of governmental and commercial entities elbow their way into the ambiguous legal environment above the Earth. 

That expansion, the professor of Space and Society at Arizona State University’s (ASU) Interplanetary Initiative says, increases the possibility of greater economic, political and military conflict — or for a new era of international cooperation.  

“We need rules about how human beings are going to govern themselves in space — independently of Earth, eventually,” Aganaba told The Hill in a recent interview. 

In facing questions such as how to dispose of waste, how to mine resources and how to share vital goods including water and oxygen, “we have this frontier mentality that we can learn from and say, ‘Well, we don’t want to take the same mistakes into space,’” Aganaba said.  

“What does sustainability mean,” she asks, “in the context of humanity becoming an interplanetary species?” 

Sustainability was what drove Aganaba into the emerging discipline of space law. A child of Nigerian immigrants in the U.K., she went to Nigeria for law school and afterward found herself working for the country’s newly established National Space Research and Development Agency helping to establish the nation’s official position on the growing problem of space debris. 

At the time, she was 24, unfamiliar with and previously uninterested in space.  

“It wasn’t like I grew up on Star Trek or Star Wars,” she said.  

But her boss at the space agency encouraged her to approach the space debris problem from the perspective of environmental law. That may seem an odd framework to use in regulating such a hostile and sterile environment — but the unsparing backdrop of space requires exactly such an approach, Aganaba said.  

“Sustainability is about things that happen with economic ends and social implications, in the context of environmental limitations,” she said.  

And rather like the oceans — whose size does little to protect the vulnerable, vital coasts — the vastness of space conceals the fact that the area available for economic activity is shockingly limited. As are the resources of oxygen and water needed to survive there. 

The rise of private space enterprises — which now include proposals for private space stations, such as Jeff Bezos’s planned Orbital Reef, which ASU is helping to design — has pushed these questions into sharp relief, Aganaba said.  

Take the question of water and oxygen: In space they’ll be scarce, and future astronauts or colonists will have to either bring them along — or mine them from the environment. 

But the mining laws of Earth translate poorly to space, Aganaba said. The overarching legal treaty for space governance — the Outer Space Treaty (OST), which she described as “the Constitution of space” — prohibits countries from “appropriation” of extraterrestrial environments.  

That has been broadly interpreted to mean no planting of flags or claiming of territories — which on Earth are key first steps to the exploitation of resources, such as hydrogen and oxygen that colonists could have to mine to fabricate air and water. 

“But all the capitalists have a big problem with that,” Aganaba said, “Because they’re like, ‘Why would I go into space, invest in finding a mine — and then it belongs to the whole world?’” 

One possible answer is that while the mine couldn’t be appropriated, the resources could. 

Countries could say that they won’t own, say, pieces of territory on the Moon, “but we will protect the rights of our citizens who actually go and get it.” 

The notion of “protection” runs into the other glaring hole in the OST: the problem of military activity in space. When the treaty was signed in 1967 by the United States, the then-Soviet Union and the United Kingdom, space was only reachable by the craft of the two main superpowers.

“We keep saying, ‘Should space be militarized? Should space be weaponized?’ without really recognizing that it already is,” Aganaba said. “Since day one, we’ve had militaries in space. We say we have all this stuff like spaces only for peaceful purposes, but what is ‘peaceful?’” 

“The U.S. interpretation is peaceful means non-aggressive,” she added, but pointed out that during the 1991 Gulf War, space-based surveillance and communications steered missiles to their targets. “Would you say using GPS to navigate missiles is aggressive or not?” 

Today, the OST now has 20 more signatories and is considered to bind another 111 “parties” — and space is more crowded than ever.  

But Aganaba said that, in addition to its lack of guidance on issues of mining, the OST provides no “rules of the road” for matters as basic as whose responsibility it is to move when two satellites get dangerously close. 

That’s increasingly risky as space gets more crowded. Particularly given the growing commitment of the United States — along with major powers including China and Russia — in treating space as a potential “warfighting domain.”

That raises the stakes of economic or political disputes becoming shooting wars that destroy key space infrastructure — and spread shrapnel and debris across Earth’s orbit, crippling combatants and bystanders alike. 

Private actors who enter such an environment “have to become militarized themselves. So it’s like it then becomes like this world of defense contractors, rather than a nice place full of students doing research.” 

Which is where Aganaba’s perspective comes in handy.  

“As a diversity, equity and inclusion person — I don’t want a domain that is exclusively militarized or for just the dominant actors. As an African, if there are resources up there, if there are benefits up there, you know, the regular kids in Africa should be able to benefit from that too.” 

And Africa is in a unique position to influence international space law, Aganaba said, because space law is based less on legal agreement or prescription than it is on “custom” — the idea that legal rules follow generally accepted practice, rather than preceding it. 

Before the Soviet Union sent Sputnik to space in 1957, for example, it wasn’t clear that it was legal to send a spacecraft to orbit, Aganaba said. It only became legal once the Soviets did it and, crucially, the other space-going powers — which was then exclusively the U.S. — didn’t object, and it became enshrined in international customary law. 

In any coming legal argument over the legitimacy of claiming — or appropriating — resources from orbit, Aganaba believes that this framework could give the African Union’s space program, set to launch next year, a position of surprising power. 

“For Africans, we want to focus on satellite applications, you know, like Earth observation, navigation, telecommunications, the basics of space science, we want to develop engineering capacity.” 

But an even bigger part could be through Africa’s influence on space law, she said — because now that they have a space industry, they’re in a good position to push back legally on U.S., Chinese or Russian appropriation of space resources. 

“You don’t need to be advanced technologically to influence governance. You can do that right now,” she said.