Space activity is entering a period of rapid expansion, and nations are now confronting the challenge of applying decades-old treaties to today’s realities – from modern operations and deep-space ambitions to the rise of commercial actors and growing competition in orbit.
Read our top four takeaways from our conversation with the Honorable Peter Beshar, former general counsel for the U.S. Department of the Air Force and Space Force, or listen to the full episode.
Takeaway 1: The Outer Space Treaty remains the backbone of space governance – but it’s being stretched by modern realities.
Space activity is growing far faster than the legal frameworks meant to regulate it.
The OST still anchors how nations think about missions in space, even though the space domain has changed profoundly, Hon. Peter Beshar said. The treaty was finalized during the first Space Race, when only a few governments had the ability to reach orbit and commercial space activity did not exist, he said.
“It’s nearly 60 years old. There were just a couple of space-faring nations at the time. There were no commercial actors in space, and all of that has changed now,” he said. As countries and companies explore the viability of extracting resources from the Moon and potentially asteroids, novel questions are being raised that were hard to fathom in the 1960s.
Central to that dynamic is the non-appropriation principle contained in Article II of the OST. “No country can assert ownership over the moon or any other celestial body on the basis of a claim of sovereignty, by occupying it or by any other means,” he said. So no country can claim ownership of the Moon or other celestial bodies, he emphasized.
Though space has become more complicated, congested and contested, the OST retains its status as the foundational document for space governance, Beshar said. “It really is considered the Magna Carta of the space world,” he said.
Takeaway 2: Emerging national laws and bilateral agreements provide important guidance on how states can balance commercial ambitions with international obligations.
The United States is working to translate the OST’s broad principles into practical norms for future lunar activity, Beshar said.
“What the United States has been doing, particularly over the past decade, is really trying to flesh out the broad principles of the OST into operational norms,” he said.
One of the key measures came in 2015, when Congress passed the United States Commercial Space Launch Competitiveness Act, Beshar said. “What that said is if you’re a U.S. citizen and you engage in the exploration and attempted extraction of resources, you ought to get the benefit of those resources…to be able to possess them and potentially sell them,” Beshar said. Other nations, including Luxembourg, Japan and the UAE, have adopted similar laws.
Then, starting in 2020, NASA and the State Department began entering into bilateral agreements with the civil space authorities in scores of countries. The “Artemis Accords” contain protocols relating to the “deconfliction” of space activities and have now been signed by more than 65 countries.
The Moon Agreement adopted a different approach to space governance that did not gain as much traction among major spacefaring nations, Beshar noted. Negotiated after earlier space treaties like the Liability and Registration Conventions were executed, it declared resources on the Moon and other celestial bodies “the common heritage of mankind.” This provision was controversial when it was introduced and remains controversial today, he said. Together with many of the largest space-faring nations of the world, the U.S. doesn’t recognize the Moon Agreement. In like fashion, China, Russia and Japan all declined to sign the Moon Agreement.
Takeaway 3: The prospect of resource extraction and nuclear reactors on the Moon underscore the need for operational norms and safety zones.
The Moon is “a potential treasure trove of crucial resources,” Beshar said. It contains materials such as water ice, elemental oxygen and helium-3 that could support sustained human presence and the generation of rocket propellant, he said.
As governments and commercial actors explore the feasibility of establishing mining sites, depots and power systems on the face of the Moon, the need for operational norms becomes all the more important.
Safety zones are one of the measures meant to provide that clarity, Beshar said. “The goal of a safety zone is trying to create some buffer areas,” he said, noting that systems like planned lunar nuclear reactors require separation so risks from one installation do not cause harmful interference to another. Advance public notice and a commitment to scientific discovery are other important elements.
Takeaway 4: Destabilizing capabilities – especially potential nuclear-armed satellites and debris-creating ASATs – demand renewed global coordination.
Concerns about escalation in orbit are rising as new capabilities push against the limits of the OST. The recent alarm over a potential Russian nuclear-armed satellite highlighted how destabilizing certain technologies could be, Beshar noted. The consequences of a nuclear detonation in low Earth orbit would be severe: widespread disruption to satellites, navigation systems, communications networks and civilian services that societies depend on daily, Beshar said.
“Secretary Barbara Barrett of the Air Force used to say that civilians access space many times before their first cup of coffee in the morning,” Beshar recalled. “And so if there was a nuclear blast, it would have a very significant impact, not simply on military capabilities, but everybody in civilian society,” he said.
Beshar noted that even during the height of the Cold War the United States and the Soviet Union were able to negotiate multilateral space agreements as well as bilateral arms’ control treaties like SALT II, the Anti-Ballistic Missile Treaty and New START.
Although these three treaties have expired, the hope, Beshar said, is that space-faring nations can still find areas of agreement despite today’s geopolitical complexity. “If not a treaty…at least more norms,” Beshar said. “That’s where I hope this will go.”
For more, listen to the full episode.
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