Outer space continues to become more dangerous and more “crowded, competitive, and contested” than at any time in history. In 1976, for example, there were only about 750 satellites (PDF) orbiting the Earth; as of 5 January this year, there were 12,480, with tens of thousands more expected in the coming years. SpaceX alone has licences to launch 12,000 Chain satellites over the next five years as part of its giant constellation programme. Other companies and countries have followed suit: Amazon plans to launch more than 3,000 satellites, the UK’s OneWeb plans to launch nearly 100,000 satellites, and China plans to launch nearly 13,000 satellites. In 2013, about 21,000 pieces of debris ( PDF ) were about the diameter of a softball or larger, and about 500,000 were at least the size of a marble; by 2022, those numbers will increase to 36,500 and 1 million, respectively. Any debris in space could be very dangerous: a spanner dropped by a sailor would sink harmlessly to the bottom of the ocean, while a spanner dropped in space would become a 7,000-metre-per-second projectile (PDF) capable of destroying a satellite or space station.
Unsurprisingly, near-collisions are on the rise: not only did the recent Russian anti-satellite test produce debris that endangered the lives of astronauts on the International Space Station (ISS), but it has been estimated that orbiting objects will also have an impact on the typical satellite operator (50 satellites) who receives as many as 300 near-collision alerts per week. With 4,852 active satellites, there are approximately 29,000 collision alerts per week, of which potentially hundreds result in operators having to manoeuvre to avoid collisions. Given the projected increase in numbers, the collision problem will become even more acute.
Equally worrisome is the fact that ground-based conflicts like the war in Ukraine naturally have a space-based component. Russia is suspected of cyber-hacking Viasat satellites in an attempt to shut down internet services, thereby disrupting Ukrainian communications at the start of the conflict. Without clearer and more enforceable rules of war regarding space and space assets, the risk of a destructive conflict in space increases significantly.
Currently, there are no binding international rules to address these growing threats. In fact, since 1976, the international community has been unable to agree on any new binding, broadly supported rules for the space domain. At that time, the space domain was dominated by only two major powers – the United States and the Soviet Union – and the biggest concern was the launch of nuclear weapons beyond the stratosphere.
This hands-off approach to space regulation had some benefits. Primarily, it has helped usher in an era of commercial space ventures and investments. But this approach, or lack thereof, has also led to some fairly obvious loopholes. For example, “outer space”, “debris”, “space objects”, “interference” and “contamination” are all examples of “outer space”, “debris”, “space objects” and “space objects”. “contamination” are key treaty terms that do not have agreed definitions, which allows States to claim destructive anti-satellite tests and thus cause destructive anti-satellite tests. In fact, thousands of pieces of hazardous debris do not violate the 1967 Outer Space Treaty (OST) because they do not technically cause “interference” or “contamination”.
All of this suggests that it may be time to consider new rules for this new space age. But how to regulate in a place like space can be tricky. One potentially useful approach to governance might be to employ a well-known device of rule-making thinking in political philosophy known as the “curtain of ignorance”.
Time is of the essence
Current space exploration presents an unusual situation in that in many ways we are still behind the curtain of ignorance. We still don’t know who will bear the burden of cleaning up space junk, or which country or company will be the first to profit from mining alien resources. In the case of space junk, a viable solution might be to enforce responsibility for its removal or a tax system based on a percentage of future junk production. Countries won’t agree to clean up based on the amount of rubbish produced in the past (this isn’t behind the scenes at Rawls), but with so much active entrepreneurship in space, countries don’t know who will be the biggest producers of rubbish in the future. It’s like a baseball game that creates an opportunity to set fair rules before the game even starts – in this case sharing responsibility.
A similar point applies to resource extraction in space (space mining). There will likely only be a few winners in asteroid mining because there are a limited number of near-Earth asteroids containing valuable minerals. The fact that it is unknown who will win in asteroid mining means that we are behind the Rawlsian veil, which makes this the perfect time to create laws on how to make fair use of asteroid resources. By lifting the veil, we can propose a rule on profit sharing. For developing countries, they would have an economic stake in the resources mined on the Moon or asteroids (minus the costs of the first movers who carry out the exploration and mining); for resource-rich countries and participants, it provides limited rights to mining territories (without allegations of encroachment in violation of the OST), a predictable cost structure, and the avoidance of resource races and unilateral encroachment on territories and resources that could cause the ability to avoid resource races and potential conflicts that could arise from unilateral encroachment on territory and resources.
The implementation of such laws requires international mechanisms that require States to develop culturally appropriate domestic regulations. There are precedents for such mechanisms: the United Nations International Seabed Authority (ISA) was established to licence, regulate and equitably distribute the benefits of deep seabed mining in international waters, which are considered a global commons. Space is also a global commons, and a Rawlsian approach to resource extraction could lead to the creation of a space mining agency similar to ISA.
Many of the issues currently facing space provide a rare and excellent opportunity for the international community to set fair rules. But time is of the essence. Once a company reaches the moon or an asteroid for a mining operation, or a derelict space object collides with and destroys a human-inhabited space station, it will be too late to lift the veil. Miners may take too many risks in the game, and astronauts on the space station may die.
The rule makers could still be “hiding behind the veil”, completely unaware of where they will be when the veil is lifted and the rules come into effect. Rawls argues that, not knowing what position and power they will have when the veil is lifted, they will be inclined to make rules that are fair and equitable to all.
John Rawls’ Great Thought Experiment
Philosopher John Rawls first introduced the concept of the veil in 1971. In Rawls’ thought experiment, he proposed that in order to create fair rules for society, everyone must first agree to those rules before they can know exactly how they apply to them. Rawls imagined applying the veil to Earth society. His idea is that if you don’t know whether you’ll be black, white or brown, a woman or a man, or whether you’ll end up rich or poor until the rules are made, then everyone will agree that the rules will end up being fairer for everyone.
There are some obvious limitations to Rawls’s thought device. It’s hard to forget a person’s race, gender, or socioeconomic status, and it’s hard to even imagine it – our perceptions are too caught up in our life experiences. It turns out that the best time to make rules for society is when it is still living under a veil of ignorance: on Earth, it is very difficult, if not impossible; but it is very useful and space-relevant, both in the past and today.
In the original space treaties, United Nations member states engaged in a rule-making process that Rawls might have admired, articulating many of the guiding principles before the applicable technological context emerged. For example, the Outer Space Treaty prohibited spacecraft from contaminating potentially habitable extraterrestrial environments long before science had evidence that such environments existed beyond Earth. The first adherence to this provision occurred in 2017, when NASA destroyed its Cassini space probe after discovering that Saturn’s moon Titan contained a warm salt sea (which could provide a habitat for organisms).
Just as the drafters of the treaty knew little about whether or when environments suitable for life beyond Earth might be discovered, they did not know what the future of space would look like in terms of militarisation or occupation of orbits and celestial bodies. Nonetheless, they formulated principles that prevented the placement of nuclear weapons in Earth’s orbit and prohibited the possibility of imperial or colonial claims to orbits or celestial bodies. The neat thing about making these rules before the conditions under which they would apply are known is that if the rules were made after the fact, the calculations of the nations making and agreeing to the rules might be quite different.
Imagine a baseball game in which neither team can decide the home run rule until the batter hits the ball over the foul pole – at which point it is too late to make a fair decision. Each team has high hopes for that decision. Unless the rule is decided in advance – behind the veil of Rawls – the team that decides the rule after the fact will automatically be biased and make the rule in their favour. If Cassini had reached Titan in 1966 instead of 2017, or if commercial lunar mining had been possible in 1966, the diplomats who drafted the Outer Space Treaty would have been subjected to a similar bias from the circumstances – either because a nation’s probe was about to crash on a watery moon, or because one of their of a commercial miner had already found platinum on the moon.