One theme considered at ASPI’s recent annual Building Australia’s Strategy for Space conference ^[1] was the growing importance of space law as space becomes more contested, congested and competitive. The basis of space law remains the 1967 Outer Space Treaty ^[2] (OST), but a lot has happened since it was signed. Perhaps it’s time to review and refresh the treaty.

Article IV of the OST states that:

States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies or station weapons in outer space in any other manner.

The moon and other celestial bodies shall be used … exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden …

Article IV doesn’t ban the weaponisation of space outright. Nor has there been any other legal agreement that bans such systems, despite ongoing international efforts ^[3] in recent decades.

US adversaries (including China and Russia) are developing a suite of sophisticated counter-space capabilities, including direct ascent and co-orbital ‘hard kill’ and ‘soft kill’ systems (see here ^[4] and here ^[5]). The US and its allies must respond seriously to these challenges and protect their critical space-based infrastructure. A ‘space Pearl Harbor ^[6]’ could quickly remove the traditional information-based war-fighting advantage of Western liberal democracies, leaving the US and its partners deaf, dumb and blind at the outset of a conflict.

Part of the solution is to bolster space deterrence ^[7], to dissuade the use of counter-space capabilities by adversaries. The US and its allies, including Australia, need to work together to achieve that objective.

Strengthening the 1967 OST’s provision on space weapons is also a must, but it will be difficult to get other major space powers such as China and Russia to agree to new legal constraints on capabilities that they’re already developing and testing.

It will also be difficult to get agreement on what a space weapon is and what constitutes a counter-space attack. Earth-based soft-kill systems—such as cyberattacks ^[8] that could create scalable, reversible effects—offer deniability to the aggressor.

Article IV bans the militarisation of the moon and other celestial bodies by states, but it has a weakness: it allows ‘use of military personnel for scientific research or for other peaceful purposes’ and includes a vague statement that ‘use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited’.

Defining ‘peaceful purpose’ activities isn’t easy either, particularly when states such as China have space programs run by the military. As China looks towards crewed lunar missions by the 2030s, there’s a risk that it may exploit ‘grey zone’ phenomena on the high frontier in support of its national strategic ambitions, which include contesting the US advantage in space.

The OST was signed at a time when commercial space actors simply didn’t exist. However, Article VI implies the possibility of such actors:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by government agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

Yet that doesn’t address activities by commercial space corporations that are acting alone and independently of national guidance—or at least those that declare that they’re doing so.

For example, the potential resource wealth ^[9] of the moon and near-Earth asteroids opens up the prospect for private space corporations to make vast profits from those resources. Article II of the OST says, ‘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 other means.’ But what about the actions of private corporations, perhaps supported by private security contractors, that seek to safeguard a valuable resource claim? The OST does nothing to regulate the actions of such entities.

The US’s 2015 Space Act ^[10] created opportunities for future lunar and asteroid mining ^[11] by US commercial space companies, and US competitors aren’t likely to sit back and passively watch US companies gain an advantage. That implies a challenge to Article II of the OST, because acquiring a resource and then selling it for profit implies ownership.

If Article II is weakened indirectly through commercial activity, competitors may see an opportunity to claim territory on the moon and other celestial bodies. The rationale might be control of a valuable resource or exploitation of high ground in astrostrategic terrain for military advantage ^[12]. That would undermine the OST at its most fundamental level.

This isn’t a justification for imposing draconian governmental or international regulation on the rapidly growing commercial space sector. Such a step would smother innovation and reduce incentives for commercial space activities, slowing the growth of a future off-Earth space industry. Going back to Space 1.0 is entirely the wrong path.

The OST needs to be updated to address some of the potential risks in a more contested, congested and competitive space domain extending from low-Earth orbit out to cislunar space and beyond. That would make the treaty more relevant to the future Space 2.0 paradigm in which the fastest progress is led by the commercial sector, a significant portion of which is untethered by government direction. In particular, managing the impact of new commercial space actors that will seek access to and profit from space resources should be a high priority if the OST is to remain relevant.

The 1979 Moon Treaty ^[13] sought to expand on the OST and address some of its shortcomings. It wasn’t ratified ^[14] by the US, the Russian Federation or China, and so isn’t binding. Alongside an updated OST, a new Moon Treaty that facilitates peaceful commercial activities on the moon and other celestial bodies would be a good step forward. But the updates need to address the shortcomings of both treaties. They should clearly delineate the boundaries between normal commercial activities in what should be a global commons and state or state-owned actors that could compete for national gain. The alternative is a free-for-all on the high frontier, with dangerous risks for major-power competition in a contested space environment.