Let’s say the “supplementary” news regarding the Artemis space program – or the return of man to the moon – offers an opportunity to reflect on the possible war risk that the colonization of our satellite and Mars could cause on Earth, but also in space, over everyone’s heads. In fact, NASA lit a radio beacon on the moon for 30 minutes in February, successfully testing a sophisticated positioning system that will make visiting the lunar surface safer for future explorers. It will be possible for NASA to understand the movements and movements that other world space agencies will make on our satellite in the future.
57 years have passed since the signing of the contract Space Treaty, which in 1967 had the ambition to prevent the space race, then in its infancy, from intensifying the strategic competition between the USA and the USSR, which were the masters in space exploration at the time. The premise of the treaty was recognition of humanity’s common interest in space exploration and the peaceful uses of space. The aim was to prevent technological competition from pushing the military competition between the two blocs to a new level. No one would send nuclear weapons into orbit or place them on celestial bodies. Now it seems that is no longer the case. Tensions between the US and Russia are skyrocketing, and even other national space agencies – China, Japan, the European Union, the United Arab Emirates, Saudi Arabia, India, to name a few – are not about to give up “centimeters of space” or “landing on other planets and satellites ”, they are actually looking for a new strategic horizon. And there are also private agencies that complicate the problem. Future tensions in the cosmos are presaged by current ones being recorded in countries – in some respects protected but highly sought after due to the natural resources present – such as the Arctic and Antarctic. Claims – half serious and half fictional – by a former US president on Greenland a few years ago, or hints by some Russian groups that they want Alaska back from the US, which was bought by the Czars of Moscow in 1867.
And so the text signed in 1967 did not last until the end of the Cold War. The issue of the mining of lunar mineral resources is not far away and it is urgently necessary to find a common regulatory base for their mining and trading, even if there is pessimism in this matter, given the precedents, for example, in the field of environmental and climate protection. National sovereignty now extends to growing swarms of satellites. And space debris poses problems that affect industries ranging from insurance to security. The need to update the legal corpus that regulates human activities in space was, for example, the main topic of the conference “Comparative Visions in Space Law” organized last February by Sirio Zolea at the University of Roma Tre.
Comparative law is certainly the most suitable academic field to deal with the jurisprudence, which is still growing rapidly. But it is international law that should provide the basic principles to make it less fragmentary. However, behind this are the most complex doctrinal questions that generate specific and brutal questions, even of a military nature, given the inseparable relationship between technology and military science born in the mists of time. After all, the technology of modern jets was born with Wernher von Braun V2 rockets, with which the Third Reich devastated England and London during the Second World War. What might happen if two superpowers clashed for control of the lunar field in a few years?
The current increasingly conflictual geopolitical scenario seems to make a shared legal path unfeasible at this time. It is therefore natural that the United States decided to move first Commercial Space Launch Competitiveness Act of 2015, which allows US industry to “engage in the exploration and commercial exploitation of space resources”, although Washington says it intends to “claim sovereignty or exclusive sovereign rights or jurisdiction or ownership over any celestial body”. A precedent that earned the adhesion of some countries and the predictable and inevitable rejection of others. A partial response to the United States in recent years has come from Luxembourg, a key European financial center, about the exploration and use of space resources. In 2019 and 2021, the UAE and Japan would follow suit. China is behind schedule, but has a technological and military power that should not be underestimated. Just like India. In these days, the Italian Space Law will arrive at the Council of Ministers, which aims to provide precedents for the upcoming European Union Space Law. However, there are those such as Russia, Brazil and Belgium who fear the Stars and Stripes monopoly and argue that national laws governing the use and sale of space resources violate treaties.
Many hope that the Antarctic model without war equipment will prevail, but the very idea seems to have already been ignored, as future missions are expected to always have a scientific as well as a military profile. Agreement seems impossible today, so accepting the legitimacy of unilateral licenses that respect international law, as is already the case with the law of the high seas, which belongs to no one and where everyone can fish, could prevail. The situation is further complicated by the arrival of private companies such as Elon Musk’s SpaceX, with the risk that entrepreneurs will write the laws. In a nutshell, there are many regulatory loopholes, such as the absence of a common insurance law for space activities (if a government or private spacecraft falls on a populated center, who is responsible for paying the damages?), then there is the question of defense (for example, the Starlink satellites supplied by Musk to Ukraine would could be seen by Russian forces as legitimate targets in the ongoing war between Moscow and Kiev), protection of intellectual property and real estate rights, given that we would be talking about lunar or Martian land. All problems that could open new armed conflicts, but not on the Moon or Mars, but on Earth.