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Is current space law equipped to handle a new era of shifting power structures in space? The Conversation Weekly podcast transcript

Astronaut in space outside the International Space Station.
The Ukraine invasion has increased tensions surrounding the International Space Station. Andrey Armyagov via Shutterstock

This is a transcript of The Conversation Weekly podcast episode: Ukraine invasion threatens international collaboration in space – is current space law equipped to handle a new era of shifting power structures?, published on April 27, 2022.

NOTE: Transcripts may contain errors. Please check the corresponding audio before quoting in print.

Gemma Ware: Hello, and welcome to The Conversation Weekly.

Dan Merino: This week, we’re diving into space politics and space law. To start, how the Russian invasion of Ukraine is affecting international collaboration in space.

David Kuan-Wei Chen: Nobody wants to see Russia, which has been such an instrumental partner in the ISS withdrawal

Gemma: We talk to two space experts to understand how space is entering a new era of international competition – and whether existing space law is ready for what comes next.

Svetla Ben-Itzak: We are actually at the very beginning of how power relations in space are being formed and developed.

Dan: I’m Dan Merino in San Francisco.

Gemma: And I’m Gemma Ware in London. You’re listening to The Conversation Weekly, the world explained by experts.

Gemma: So Dan, the war in Ukraine has been a massive political and economic story for the whole world. But how is it touching science?

Dan: It’s touching science in a bunch of ways. There’s a huge technology angle, a big environmental angle — but as someone who covers space a lot, there’s also a pretty interesting space angle to this whole thing.

Gemma: In what way?

Dan: Well, for the most part, space has traditionally been a place of collaboration in science, and this insulation from tensions and conflict on the ground is under threat right now.

Gemma: What do you mean?

Dan: Well, the first thing that happened is that Russia cancelled its Soyuz rocket launches from a European spaceport in French Guiana and this meant a lot of missions needed to figure out how to get their stuff up into orbit.

Newsclip: The Russians also cut off sales and support for Russian rocket engines used in US spacecraft.

Dan: Following that, the European space agency suspended its work with Russia on the ExoMars project to get a new rover on mars.

Newsclip: In a statement the European space agency has said and I quote “while recognising the impact of scientific exploration of space, the ESA – that is the European Space Agency – is fully aligned with the sanctions that have been imposed in Russia by its member states.”

Dan: Europe cancelled cooperation with Russia on a bunch of moon missions and of course there was all this hullabaloo about the International space station.

News clip: This morning the international space station in political cross-hairs as Russia retaliates against American sanctions.

Gemma: I heard about this – I saw a spoof video that the Russian Space Agency put together reporting to show what would happen if the Russians detached their module from the international space station.

Dan: Yes, there were videos, there were tweets from the head of Roscosmos – this guy Dmitry Rogozin. He’s a bit of a Twitter hot head but he threatened to let the ISS crash down to earth. That threat is a bit empty and NASA kinda confirmed that really quickly but Russia did threaten to pull out of the ISS completely and said that the restoration of normal relations is possible only with the complete unconditional lifting of illegal sanctions. So that’s kind of a big shot across the bow of international collaboration in space.

Gemma: So, what would happen if Russia did actually pull out of the international space station?

Dan: Well, it’s pretty complicated and it definitely wouldn’t happen overnight. And to understand it, you really need to understand both the technical operations of the ISS and also the legal framework.

David: My name is David Kuan-Wei Chen

Dan: David is the executive director of the McGill Center for Research in Air and Space Law in Canada and he’s really an expert in all things space law. I asked him to explain how the ISS really operates on a day-to-day basis.

David: Construction started in 1998 when the Russians sent the first elements up into space and then from there on, different states added their own elements. Right? So, this is part of the reason behind the controversy if Russia were to pull out completely from the space station, because the Russian element is quite essential to what they call station keeping. Right? So the Russian element has the propulsion system that maintains the space station so that it doesn’t come crashing down to earth, because you know, the earth’s gravity would naturally just pull every single object down towards earth.

And it’s also Russia, which is obligated to provide a permanent escape capsule which is docked to the ISS in case, whatever emergency that the astronauts on board need to escape and evacuate. And there are other elements that are contributed by the other partners, such as the Europeans have a science module. The Japanese also have a science and research module. Canada contributed the Canada arm, which is very instrumental in the construction and the maintenance of the space station itself.

Dan: So what laws actually govern the International Space Station in all these different modules from different countries?

David: There’s one overarching agreement between the governments of the US, Russia, Canada, Japan and 11 of the participant states of the European space agency. So this intergovernmental agreement, or the IGA, is a legally binding international treaty which lays down the basic rules on the joint development and use of the ISS. The agreement also lays down that, each module, each element of the partner, what they would contribute to the collaborative project.

Dan: You mentioned there’s a Russian module, there’s the Canada Arm, there’s the Japanese science branch. Is this like a little piece of sovereign soil up in space or what’s the actual rules here? Are we talking flags and border checkpoints or anything like that?

David: Yeah so in a sense, yes. So, according to basic space law and this is reflected in the intergovernmental agreement of the ISS, every module belongs to and is operated by that state, right? So the US module obviously is operated and maintained by the US, through its space agency, NASA, and ditto with the Russian module operated and maintained through its space agency, Roscosmos. And the law is, for instance, if there were an invention created aboard the US module, then intellectual property law of the US would apply to that creation and then there are also laws dealing with customs and immigration and so on and so on.

Dan: Oh, interesting. So like there is in fact some “customs”, on the space station. Like you don’t have to check in or anything but like if something passes through one branch to the other technically there’s the shift in laws.

David: Technically, there is a shift in law and the interesting fact is, because of the unique nature of the space station, the IGA actually has a provision dealing with criminal jurisdiction, right? If say, a crime were committed on board, what kind of laws would govern? What is unique to the ISS is that, the states have agreed they would have criminal jurisdiction over their own nationals. So, for example, if a US national were to commit a crime on board the space station then US law would apply to this US national.

Gemma: Dan, has this ever actually happened, has there ever been a crime on board the space station?

Dan: Well, somebody was accused of a crime.

Newsclip: NASA’s reportedly investigating what may be the first crime committed in space.

Dan: A couple years ago, a US astronaut, Anne McLain, was accused of using a NASA computer to access the bank account of her wife who she was divorcing at the time.

News clip: McLain’s wife reportedly filed a complaint accusing her of identity theft.

Gemma: So was it the first space crime?

Dan: Well, some people investigated and the case was actually later dropped and McLain was cleared of any wrongdoing. In a funny twist, it’s now actually McLain’s former wife who’s facing trial this year and is accused of lying to federal authorities.

Gemma: OK, so it sounds complicated! But we’ve digressed a little bit here… so back to the International Space Station. We’ve had these threats from the head of the Russian Space station, Roscosmos to withdraw from the ISS, but what has actually happened? Like, how is everything going for the astronauts up there orbiting earth.

Dan: Things seem to be going alright up in space. Russian cosmonauts just the other day did a space walk and connected a control panel to a European owned robotic arm. End of March, a NASA astronaut named Mark Vande Hei returned to earth on a Russian Soyuz space capsule with his Russian colleagues.

News clip: Touchdown! Mark Vande Hei and Pyotr Dubrov back home one year after leaving the planet.

Dan: Rogozin had actually said his return could be under threat, but you know the guy’s kinda full of hot air.

News clip: Even as tensions rise here between America and Russia, over the war in Ukraine, the crew shared a hug.

David: It just shows despite these tensions on earth, cooperation continues and the heads of NASA and the Canadian space agency have all written to their Russian counterpart to say, you know, cooperation in the ISS is independent of any geopolitical issue, and the US government and Canadian government continue to support the ISS and to ensure its success. And I think astronaut Vande Hei said it best when you said “I’ve heard about these tweets and threats, I kinda laughed it off and I moved on.”

Dan: Yeah, yeah, yeah.

David: And you know, these threats have been made before these sanctions. Actually, the Roscosmos chief Rogozin – they were actually in place at the time, the 2014 invasion of Crimea – when he was the deputy prime minister, there were sanctions imposed on him personally. And at the time, also we saw these threats that were being issued to cease the co-operation on the ISS but NASA came out and assured the world that cooperation would continue as usual and nothing has changed. And hopefully this is going to be the same as well.

Dan: So, you talked about the intergovernmental agreement that kind of governs the laws regarding ISS, from Crimea, from the invasion of Ukraine, do you feel like the laws in place are doing their job aboard the ISS? Are they strong? Are they robust? Are they involved in keeping the stability?

David: Yeah, I think so, I think so. I mean nobody wants to see Russia, which has been such an instrumental partner in the ISS, withdraw from the ISS, right? And you know, the IGA, like with any agreement, it’s not as easy as you think they “Oh, We’re gonna stop cooperation, we’re gonna withdraw from this”, because there is actually built in provision, which says, if you do want to withdraw, there is a one year period. And I think they negotiated it into this because they wanted to make sure that it’s not just a sudden withdrawal, whereby all the other partners are left in the lurch.

So, this one year withdrawal period allows them to kind of negotiate, discuss what would happen, you know, who will take over and so on and so on. And there are also provisions in the IGA, which deals with what happens when there’s this dispute. So clearly, right now, there is a dispute, and there are mechanisms in place to initiate consultation and negotiation to hopefully resolve any issues.

Like all international agreements, these provisions are in place to prevent the unnecessary escalation of political disputes or tensions which threaten to completely derail 20-30 years of unprecedented cooperation in space, right? This again, despite these tensions, the ISS has continued to operate and space has really has always been an arena that’s kind of, isolated from tensions on earth and we hope this continues to be the case with the ISS.

Gemma: You know, David mentioned there was this long history of scientific collaboration in space … but that wasn’t always the case, right? I mean, I, in my head, I think of the space race between the US and the Soviets during the cold war and lots of competition – it was a tense period.

Dan: Yes, it certainly was a time of tension. There was a lot of competition to become the space dominant player but there was a surprising amount of collaboration too. Notably, there was the 1975 Apollo-Soyuz test, where an American Apollo spacecraft, carrying three US astronauts, docked with a Russian Soyuz spacecraft carrying a couple Russian cosmonauts. They not only docked in orbit – first time that ever happened – but they shook hands.

Gemma: Friendly!

Dan: Friendly… during the middle of the cold war when the United States and Russia all thought they were gonna nuke each other. There’s also been a bunch of kinda more international efforts. There was the 1967 Outer Space Treaty, the 1979 Moon Agreement and we’re gonna hear a lot more about those later.

Gemma: So this was a moment of real tension on earth and yet in space things were you know not so hostile?

Dan: It wasn’t and it was actually really both in the US and the Soviet Union’s strategic interests to restrain themselves in space in a sense. Space is such a global good, and at that time there was so much room for technological growth and advancement. It was more of a rising tide lifts all boats and not so much a zero sum game. At least back then.

Gemma: So the US and the Soviets started collaborating in space – what happened from there?

Dan: Well, slowly as other countries gained their own space abilities they got in the game too. France became the third country to put a satellite in space in 1965. In the 70s, a group of European nations formed the European Space Agency. This is the ESA. And now they’ve got 22 member states. But the European Space Agency was the first side of things to come. As more and more nations gained access to space and especially in the last couple decades alliances, treaties, collaboration, have gotten a lot more complicated. And to understand what’s been happening to get us where we are today and what might happen next – I called up someone who studies power itself and how it’s divided in space.

Svetla: My name is Svetla Ben-Itzak.

Dan: Svetla is an assistant professor of space and international relations at Air University in the US, where she works with and trains senior members of the US space force.

Svetla: And I teach courses on space security, international security, and the like. However, I would like to say that the views that I express here are my own.

Dan: Today, more than 70 countries have an official space agency of some sort. An additional roughly 26 or so have at least one satellite in orbit. But as Svetla explained, some countries are still clear leaders.

Svetla: We can say the top five leading space faring countries are the US, China, Russia, Japan, and India. And of course the European Space Agency is up there among the top six.

Dan: So with all these newcomers entering the space game, how has the nature of international collaboration changed?

Svetla: So, in the past, we had individual countries leading in space, however, nowadays, more often than not, in space, they’re not acting alone. So the trend has been that countries that partner on the ground also come together in space to accomplish specific missions in space. So I call such formation space blocs. So it makes sense for countries to come together to pool their resources, manpower, expertise, and know-how, to accomplish more. Right. So those space blocs have most of them formed over the last five to 10 years, right?

Dan: So, this is super recent?

Svetla: Very recent. Especially the ones that actually have specific missions to accomplish in space.

Dan: Who are these space blocs? What are the kinds of big players and who’s in them?

Svetla: We have the Asia-Pacific Space Cooperation Organization also known as APSCO. This one was formed back in 2005. We have the Latin American and Caribbean Space Agency kind of bloc. That was from just last year in 2021 and currently has seven countries led by Argentina. We have the Arab Space Coordination Group, formed in 2019 by the United Arab Emirates. Currently it has about ten Arab countries. And of course you have the African Space Agency.

Dan: The race to the moon and in particular a moon base, this is a pretty good example where these blocs are kind of in play. So can you describe what’s going on there?

Svetla: Yes. On one hand we have the Artemis Accords, an international agreement signed in October 2020, initiated and led by the United States.

News clip: We’re going to the moon sustainably – in other words this time when we go to the Moon we’re gonna stay at the Moon for long periods of time.

Svetla: The main objective is to put a man and a woman back on the Moon by 2025 with the ultimate goal of expanding space exploration to Mars and beyond, right. We have 18 countries signatories to the accords. The last two to join were Bahrain and Singapore and also the Isle of Man, actually.

News clip: Ushering in a new era of space cooperation between Russia and China – the two countries have signed a memorandum that sets in motion plans to join the space station, either on the Moon’s surface or in its orbit.

Svetla: On the other hand, we have another space bloc formed by an agreement between Russia and China, that dates back to 2019 when both countries actually affirmed their intent to work together and established an international lunar space station by 2026, again, on the south pole of the Moon.

Dan: Why aren’t they working together? Right. Like what’s going on here?

Svetla: Well, my argument is that this separation reflects actually strategic interests and uncertainties about the security intentions on the ground that have been kind of transposed to space and one supporting evidence to that is that although the Artemis Accords, are open to any nation to join in – anybody can join in – Russia and China have been reluctant, they have not become signatories. And some argue not only Russia and China, but also some scholars argue that those accords are an effort to expand US-centered and US-defined order to outer space. Right?

Read more: Artemis Accords: why many countries are refusing to sign Moon exploration agreement

So through space blocs actually countries consolidate their sphere of influence. Not only on the ground, but also in space. Right, so on our side, we’re also are not running into kind of joining the Sino-Russian space bloc. I mean, I argue that, for example, the Asia Pacific Space Cooperation Organization, the APSCO led by China that was established back in 2005 and currently has eight members namely Bangladesh, Pakistan, Mongolia, Peru, Thailand and Turkey. So China is using this bloc to expand its influence in the area via its space, satellite services that it provides to the members.

So my argument here is that countries actually use those space blocs to consolidate and expand their sphere of influence both on the ground and in space. The question is how many such space blocs will develop? Whether there will be some connection between the blocs based on scientific interests? And whether those blocs will actually consolidate even further and exclude anybody who would be interested in joining? So we are actually are at the very beginning of how power relations in space are being formed and developed.

Dan: And that certainly makes things interesting. So, how do the commercial actors play into this whole world?

Svetla: So let me just kind of like set the stage a little bit because over the last 15 years, thanks to federal deregulation specifically in the United States, commercial activity in space, more than tripled. In 2020, commercial activity accounted for about 80% of the total global space economy. And some scholars see that this is the future of international cooperation in space, through commercial entities and shared commercial interests, right? Because commercial companies will actually decrease this inherent uncertainty as to what we think the others will do. Right? I argue personally that although important, I think commercial entities will remain subject to state actors, because states dictate what goes in space.

They dictate the rules in space. And one example for that is the 1967 Outer Space Treaty, which provides the basic legal framework of international space law. So the Outer Space Treaty gives states full responsibility, liability and ownership of any commercial entity that operates in space.

Dan: Can you explain what you mean by that? As in, SpaceX launches a rocket – it’s technically the US launching a rocket, right?

Svetla: Yes, absolutely. Actually, nothing flies into outer space without registering with a state first and being allowed by the state to fly. And of course, to return, because states are responsible and liable for any object or person that happens in space. And they also own it, in terms of the rules of states that apply on that specific spacecraft as well as people, right.

Dan: I want to move on to the invasion of Ukraine and would you say that this recent event is kind of that first test of the new kind of order of space, the first big shock to the system, if you will? And if so, how’s it playing out?

Svetla: It is not the first and it won’t be the last. It happened many times in the past. The war in Crimea was very similar to what’s happening right now. But what is happening now really evidences what I’ve been arguing, namely the primacy of states over commercial actors in space affairs. Right?

So for example, in response to the Russian invasion of Ukraine, western countries imposed a number of sanctions against Russia. And as a result of those sanctions, many commercial companies actually stopped collaborating with Russia’s space agency Roscosmos. So, the British satellite company, OneWeb, suspended all launches from Russia’s Baikonur cosmodrome in Kazakhstan. Scientific collaboration with Russia in space also ceased. For example, Germany discontinued their scientific collaboration with Russia on the International Space Station.

Dan: Do you think the invasion of Ukraine and all these actions that are being imposed sanctions, lack of scientific collaboration. Is this further ossifying space blocs or what is it kind of doing to the trend line?

Svetla: The unfortunate effect in this particular case is that tensions on the ground for now seem to have kind of rigidified the system even further in space, right? Have had negative consequences on scientific collaboration in space and commercial collaboration. Now in the past, what happened in space actually weathered storms on the ground, and collaborations survived, and even thrived despite tensions on the ground. So we’ll just have to wait and see if those will have some long-term effects on the pace blocs in general or on specific scientific missions.

Dan: Are there risks to this? Are there any parallels you can draw to some historical places on land, perhaps?

Svetla: Yes, absolutely. So, if history is to serve us as any kind of warning precedent or lesson? I would say we should be reminded of what happened just before world war one. The lesson there that the more rigid alliances become, an inflexible alliances become, such as the growing rigidity of the two alliances, the Triple Entente and the Triple Alliance at the end of the 19th century and the beginning of 20th century. The growing rigidity of the two alliances is often cited as a triggering cause of world war one at the systemic level, right? And also cited as the war was inevitable, right? So I think we can draw a lesson that as long as existing space blocs remain flexible, open to all, willing to accommodate very often diverging interests – cooperation will continue and, we may avoid an open conflict in space.

Dan: So, given all of these trends, Svetla, are you optimistic about the future of space or are these space blocs that are emerging potentially a bad thing?

Svetla: I want to be optimistic about the future, but I also can see that things may develop into a different kind of, not so optimistic pathway. So, if we manage to keep the uncertainty about the intentions of others at bay and focus on the scientific missions at hand – actually pooling our resources together in those space blocs will help us accomplish this faster and will help us go further for the benefit of all. The bad news here is that, if security interests that are usually based on the fact that we are uncertain as to what the other side is trying to accomplish, override current space mission objectives – this may lead to further rigidity of the existing space blocs, which will limit our options and it will spiral us down into an undesired path of confrontation and conflict.

Gemma: So, Dan, a space war sounds like science fiction but also very scary … how did you leave your conversation with Svetla? Did you feel like it was going to happen any time soon?

Dan: Gosh, I certainly hope not. But it’s hard to predict. So I’m not going to go on the record books here. But I do think it’s very interesting how the structures of power and the structures of relations in space are shifting towards a place that might in fact be more conducive to conflict and that’s scary.

Gemma: And is there anything preventing us from having a war in space?

Dan: I guess the one thing kind of preventing it is sort of space law but that’s a really big grey area.

Gemma: We heard a little bit about the 1967 Outer Space Treaty. Is that not going to help?

Dan: Well it might and David Kuan-Wei Chen actually talked about this a little bit.

David: That treaty together with a series of other UN treaties were adopted in the 1960s and 70s, at the height of the cold war and it’s quite miraculous that the Soviet Union and United States came together at the UN to lay down the basic principles, what you can and cannot do. They agreed that you cannot own space or own celestial bodies such as the moon or asteroids and so on and so on. Even then they agreed on the fundamental principle that you cannot use nuclear weapons or weapons of mass destruction in space. And there’s also, a very general consensus on the fact that the exploration and use of outer space should be for so-called peaceful purposes. So, even at the time they recognised that outer space is not a lawless, wild west domain, where anyone can do anything.

Dan: Things have changed a lot. Do you think that space law is well-equipped to deal with today’s problems? Especially with all the ways different countries and companies are aligning themselves and using space?

David: Yeah, so I think one major problem is the possibility and the fear of an extension of conflict into outer space. So yes, when they were drafting the space law treaties at the UN, they made sure that there’ll be no military manoeuvres, no testing of any kind of weapons on the Moon. But then there’s a legal vacuum because that doesn’t address the testing of weapons in outer space. And so we saw unfortunately it was Russia that tested a weapon in November 2021.

News clip: The US has condemned Russia for conducting a dangerous and irresponsible missile test that it says endangered the crew aboard the International Space Station.

David: So they tested what they call an anti-satellite weapon, basically using a missile to destroy its own satellite. And that created a whole bunch of debris that really threatened, potentially, the space objects of other states.

News clip: Station Houston on space to ground two, for an early wake up. Astronauts aboard the international space station were awakened overnight by NASA flight controllers in Houston.

David: Astronauts on board the International Space Station had to temporarily evacuate into the capsule, you know, in case they had to flee oncoming space debris.

Dan: When there’s clear laws in place if an actor does something that breaks international law or violates something, response is justified, right? My worry is that without clear guidance, there’s a little more leeway, right? Like Russia can rattle, a sabre in space, and what is the response? Because it isn’t breaking any laws. So is this kind of like grey area a problem that people are thinking about?

David: Yeah. it is. And so my background is in law. So, you know, I see the world in terms of law of rights and obligations and, what, what we’re seeing right now is increasing recognition of threats to space activities and space objects. Which is a great thing, but there’s also a shift from how to address these threats, right?

So in the 60s and 70s, we adopted a series of UN space law treaties, which are legally binding. And there are consequences if you were to violate such legal principles and norms, then now the dialogue is increasingly moving towards the adoption of so-called guidelines for the long-term sustainable use of outer space and more recently, states are discussing about norms and rules and principles of responsible behaviour, which are based on, you know, shared values and expectations of what is appropriate behaviour. But what happens when someone breaks a norm or does not behave responsibly?

Dan: Sure, sure, Sure.

David: I mentioned earlier the Russian ASAT test in November. Many states came out and condemned the action as irresponsible behaviour. That’s it.

Dan: But then what? You can’t do anything else, right? Yeah.

David: Exactly! I’m not singling out Russia.

Dan: Sure, sure, sure.

David: You know, the United States, China, India they have all conducted ASAT tests in space. But there’s a big difference between calling someone an irresponsible actor and calling someone a law breaker. Because when someone is a law breaker, there are potential obligations, potentially – if you were to cause damage, then you may have to compensate. And there are legal consequences. There are also potential political fallout of being cast as an outlaw. And so, this is something that we are quite concerned with.

Dan: Do you think that law can play a role in maintaining cooperation and flexibility as space changes and as technologies improve?

David: Yeah, I think so. I mean, again, you know, really the testament and the legacy of the Outer Space Treaty and the series of UN space law treaties is that they remain relevant til this day.

Dan: And you do think that? Like I like cause that that’s there so old what it’s crazy that we are actually still relevant.

David: Yeah, but you know, you can say the same about the laws of war, right? The laws of war were developed on Earth, originally in the 1800s, ironically in the Crimea, because the founder of the International Committee of the Red Cross saw such devastation and tragedy happening to the civilian population that, you know, you said there must be basic principles of what we cannot do in an armed conflict situation. That’s over a hundred years ago, but those still remain relevant to this day; remain relevant to the conflict situation in Ukraine, in Afghanistan, in Yemen and so on.

So, even though laws may be old, that doesn’t mean they’re necessarily outdated. And I think the strength of the space law treaties is that perhaps with foresight, they were drafted in such a way that you can interpret them and apply them to new contexts and new situations.

Dan: David and his colleagues at McGill are currently putting together a new manual – the goal to actually clarify a lot of the grey areas in space law and turn some of the unwritten rules of space into actual written rules.

Gemma: And is some of this about who owns space as well? Because Svetla talked about these two kinds of slightly competing missions going to the south pole of the Moon – what if they find water there, or minerals or something they want to exploit?

Dan: It’s less a question of if they will find it because we know it’s there. It’s more of a question who’s got the rights to do what with it? And that’s exactly why these two missions are going there – to see what they can do to exploit these resources and David actually talked about this a lot too.

David: I think what would be very interesting to see, especially as countries return to the Moon, is how they interpret international law. So we have the United States, especially, rallying countries around the world to sign up to the Artemis Accords, which, which lays down the basic, political commitments. They’re not actually legal obligations, they’re political commitments of what they’re going to do on the Moon. Which includes the exploration and exploitation of space resources. Now, how does, for example, going to the Moon and extracting resources square with that international legal obligation established very clearly in 1967? And there are a number of countries, Japan being the latest one, in addition to Luxembourg, the United Arab Emirates and the United States, which have passed national legislation saying, we recognise that private actors can go and exploit space resources, and have rights over such space resources.

Dan: Oh, so the rights is the important part there, right?

David: Right! Yeah. So, how does that square with the overarching concept of non-appropriation under international space law? One of the UN space law treaties is called the Moon Agreement, which was adopted in 1979, which envisions the establishment of an international regulatory body to deal with the extraction and the sharing of lunar resources. To date, there are only 18 states that are parties to the Moon Agreement – none of which are major space-faring countries.

Dan: So we’ve talked about the Moon and missions to establish bases there, but what about further out into space, like Mars for example or maybe moons of Saturn, eventually?

David: Yeah. So, the Moon Agreement, even though the name is Moon Agreement, it actually applies to celestial bodies in the solar system. Technically the Moon Agreement would apply to activities in the exploration and use of resources on Mars. And that’s, that’s something that I think, you know, Elon Musk has been saying, you know, it may happen in the 2030s and so on. Again, not many countries have signed up to the Moon Agreement so therefore those obligations under Moon Agreement do not apply to them. And so I think the big question with the next steps of space exploration and habitation is how do you make sure that these laws that were drafted on Earth apply and are enforceable in extra terrestrial contexts?

Dan: So not only do we have the grey area kind of hole, we’ve got the enforcement hole, which certainly, you know, a law doesn’t matter if it’s not enforced.

David: Yeah. And, you know, there was, again, I’m not trying to single out, Elon Musk, but he floated this idea, people can sign up for missions to Mars and basically work to pay back there…

Dan: Oh gosh.

David: And that sounds like something, unfortunately sounds like indentured servitude.

Dan: Yeah, we’ve got plenty of history and plenty of sci-fi shows to warn us against this.

David: That’s right. So, I think, it’s great that we are seeing more private and commercial investment in space which means, you know, governments do not have to dedicate so much of their financial resources to space exploration because you know, these billionaires are willing to spend their money and fortunes, hopefully for the benefit of humankind. But you know, it may also then raise the concerns of whether again, looking back at history, we’ve seen the history of privateers; people going to new territories and new worlds and saying, well, we’re going to exploit. We’re going to colonise. What does that mean? Again, it comes down to what impact will that have on the international binding laws that the states have agreed on for so many decades.

Gemma: When you think about it, it’s actually the richest countries in the world who have the resources to go to space. So it’s the richest countries that are gonna benefit from it. So really finding a way to make sure those laws are enforced is incredibly important to equity to space resources in the future.

Dan: Absolutely and again it’s all about resources. To kinda close the loop on this episode. I really was shocked when all this stuff started bubbling up about tensions between Russia and the United States in space. I had this kind of naive bubble that space was some happy-go-lucky place of collaboration and science and that it was in some way insulated from the realpolitik of earthly tensions. the invasion of Ukraine and all the fallout from that has really kind of shattered that bubble for me and as Svetla explained this has not been a surprise for those who have been paying attention for it and that’s because of the technology changes and because there so many people going into space, and because there’s this competition and so, space needs laws.

Gemma: It definitely does.

Gemma: If you want to learn more about how the Russian invasion of Ukraine has affected scientific collaboration, including in space, we’ve been publishing a few articles about that on The Conversation including from Svetla and David.

Dan: We’ll put some links to their stories in the show notes as well as a few others.

Gemma: Before we go, Australians are going to the polls on the 21 May in a federal election. And a new podcast from The Conversation is digging into some of the political issues ahead of the vote.

Jon Faine: Hello I’m Jon Faine, former ABC Melbourne presenter and now a vice chancellor’s fellow at the University of Melbourne. If you’ve been enjoying The Conversation Weekly I hope you’ll love our new podcast Below the Line from The Conversation, Australia and La Trobe University covering the Australian federal election campaign 2022.

Amid the global headwinds of COVID-19 and Russia’s invasion of Ukraine and local crisis here, the devastating floods, the government of prime minister Scott Morrison is behind in the polls. Can he turn things around or will the Labor Party take back power in our election in May. I’ll be joined by political scientists Anika Gauja and Simon Jackman from the University of Sydney and La Trobe University’s Andrea Carson. Around twice a week we’ll try to do it to unpack the party lines and policies that matter. To listen and subscribe, search for Below the Line on The Conversation or your favourite podcast app.

Gemma: That’s it for this week. Thanks to all the academics who’ve spoken to us for this episode. And thanks to the conversation’s Nehal el-Hadi and Stephen Khan and to Alice Mason for our social media permission.

Dan: You can find us on Twitter @TC_Audio, on Instagram at theconversationdotcom or via email. Don’t forget to sign up for our free daily email as well and hey – tell a friend if you liked this episode.

Gemma: The Conversation Weekly is co-produced by Mend Mariwany and me Gemma Ware with sound design by Eloise Stevens. Our theme music is by Neeta Sarl.

Dan: I’m Dan Merino, thank you for listening!

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