TO ELON Musk—the founder of the extremely successful space launch vehicle and communication satellite company, SpaceX—colonizing the Moon and Mars, becoming a “multi-planet species,” is both profitable and vital to the future of humanity. NASA has endorsed this expansive vision of the next generation of human space flight in the form of a close collaboration between the Artemis lunar exploration program and SpaceX to employ a lunar lander derived from the very high-performance Starship design by the end of this decade.

To the Pentagon, U.S. domination of the space domain is key to national defense. This more militarized impulse has been institutionalized with the creation of the United States Space Force (USSF), a legacy of the Trump administration. In its more benign form, the USSF will provide dramatically improved situational awareness of human activity in cislunar space. More problematic is the prospect that the USSF is prepared to use force in this new, much larger, and increasingly contested space environment.

Clearly, we have entered a new space era, projecting all the Earth’s great power pathologies—ambition, fear, and greed—into the heavens. 

The United States and China are in an increasingly bipolar competition with traditional space powers such as Russia, the EU, Japan, and India playing a secondary role, tilting in one direction or the other. Thus, the terrestrial competition between Washington and Beijing is creating fresh facts and separate rules to guide their respective space policies and those of commercial actors, eclipsing the universally agreed Outer Space Treaty (OST) principle of space as “the province of all mankind.” Call it the new tragedy of the commons.

A MAJOR paradox of this uncertain era is that outer space has become ever more vital to sustaining civilization—everything, from GPS, global television, and the Internet to military command and control—yet burgeoning human activities in space have never been more imperiled. From the parade of billionaires whose leisure time is filled by space tourism, to both the United States and China landing rovers on Mars and NASA’s successful launch of a $10 billion Webb telescope peering into the origins of the universe, 2021 marked a new height for a crowded, contested cosmos. There is a mushrooming commercial space industry that includes Jeff Bezos’ Blue Origin and Richard Branson’s Virgin Orbit launcher programs that are creating a presence in space that may soon rival or surpass the role of governments—who are ultimately responsible for private sector actions. Yet there is a dearth of global rules to guide space-faring nations’ behavior.

There’s no better illustration of this predicament than Russia’s anti-satellite (ASAT) test last November blowing up one of its own defunct military satellites and creating a cloud of more than 1,500 pieces of space debris. Even small pieces of debris, traveling at some 17,000 miles per hour, can cause crippling damage to satellites, potentially disrupting the space infrastructure that is the nervous system of modern life. Moscow’s test forced astronauts—and its own cosmonauts—on board the International Space Station (ISS) to take emergency safety measures for fear of collision.

Russia’s test followed a similarly dangerous Chinese ASAT test in 2007, and a U.S. ASAT test (though designed to minimize long-term orbital debris) in 2008. More recently, China protested small “cubesats—shoebox-sized satellites launched by SpaceX’s Starlink project to facilitate global broadband WiFi. One almost collided with China’s space station, so close that Beijing protested to the UN last December after having to take evasive action. At present, Starlink has approximately 1,600 small satellites in Low Earth Orbit (LEO), but Musk wants to launch 40,000. An explosion of private-sector space business—from satellite launches and space shuttles to the quest for mining asteroids and planets—has blurred the line between civilian and military activities, racing ahead of any duly considered global regulation. Dealing with space junk, however, is the most promising area for cooperation.

There are currently 4,550 operating satellites in LEO from some eighty nations, though roughly half are U.S. commercial and government/military satellites. They are essential for everything from nuclear command and control, climate observation to GPS, and the internet, streaming video, and ATMs. Moreover, an already crowded earth orbit is getting worse. The private sector is driving the new space economy enabled by new technologies to miniaturize satellites, like the aforementioned cubesats. Google and Elon Musk’s SpaceX alone plan to launch some 50,000 cubesats in this decade.

All this reflects a troubling anarchy in the cosmos, from a burgeoning Wild West scramble for space resources to a full-blown militarization of space—one ill-conceived aspect of unrestrained arms racing in this era of great power competition. Trends toward replicating a bifurcated international system in space are accelerating. The problem is a deficit of rules governing behavior in space—a domain, like sea, air, and cyber, that is a global commons. The 1967 Outer Space Treaty is the one foundational accord signed by all major space-faring nations, 111 in all. They agreed to the principles in the OST, which states in Articles I and II:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind. ... Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

In the real world, the treaty is sadly outdated by both technology (as ASAT tests demonstrate) and politics, as the United States and China plan Moon bases while many nations pass laws appropriating the right for and private sector firms to exploit minerals on asteroids. The treaty offers little guidance on collisions, the growing problem of space debris, or the intrusion or obstruction of a nation’s space assets, and lacks any dispute-settlement mechanism. There are some additional legal agreements in effect under the somewhat obscure UN Office for Outer Space: liability for damage caused by space objects, safety and rescue of spacecraft and astronauts, and registration of space activities. In theory, a Moon Treaty exists, but it has not been ratified by the United States, Russia, or China. The International Telecommunications Union regulates radiocommunications and orbital resources (satellites), but will it have the capacity to manage tens of thousands of cubesats?

In this era of populist nationalism and major powers competing for dominance, fashioning new global regimes or codes of conduct for space will be very challenging indeed. For example, Luxembourg, seeking to become a European hub for space mining, has enacted a law granting private firms the right to space resources, created a space mining center, and has invested in space mining startups. The UAE has adopted a similar law, as has the United States, when President Barack Obama signed a 2015 commercial space law granting U.S. businesses the right to extract resources throughout the cosmos. Donald Trump took it a step further with a 2020 Executive Order authorizing the commercial development of space resources, explicitly rejecting the notion that space is a global commons.

These laws claim to distinguish owning resources from sovereignty. Yet, on the premise of space as a global commons, the ost, which all major nations have ratified, explicitly bans the use of outer space and celestial bodies from “…national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” How then, to construct an inclusive rules-based order?

THE BIDEN administration has endorsed the Artemis Accords, created by the Trump administration, as the preferred vehicle to address some of the concerns raised above. Basically, the Artemis Accords are principles, guidelines—rules of the road—for the exploration and exploitation of the Moon and cislunar space cooperatively. It is a complex, multistage plan to return Americans and others from partner nations to the Moon and its orbital neighborhood as a gateway to Mars. NASA will be working with national partners and relying to a considerable degree on private-sector contractors. The accords, now signed by thirteen U.S. allies and like-minded partners, are a noble initiative to offer public goods to narrow a dangerous gap between outdated rules of the road in space and an explosion of myriad emerging space activities unfolding with few guardrails.

It is a sign of the times that NASA, whose accords would be a strong draft to base global rules on, eschewed the path of negotiating a wider international pact to codify principles and guidelines for civilian space agencies. The accords are, in effect, rules that assert dominion over activities that, “…may take place on the Moon, Mars, comets and asteroids … as well as in the orbit of the Moon or Mars,” and in cislunar space. Yet, to date, they do not include some major space powers—China, France, Germany, and India. Europe remains divided on the Artemis Accords. In the case of China, NASA had little choice—the 2011 Wolf Amendment bans its cooperation or coordination with any Chinese government-affiliated entities. It has proved largely counterproductive, neither improving human rights nor constraining China’s space efforts. Instead, alarmed by NASA robust collaboration with SpaceX and other commercial partners, China has significantly accelerated investment in own, largely parallel lunar exploration plans.