Michael Byers holds the Canada Research Chair in Global Politics and International Law. Aaron Boley holds the Canada Research Chair in Planetary Astronomy. They teach at the University of British Columbia and co-direct the Outer Space Institute.
“That is a spacecraft, sir. We do not refer to it as a capsule,” said astronaut Alan Shepard, as portrayed by Scott Glenn in The Right Stuff.
Mr. Shepard was a pilot, not a passenger. In 1961, he became the first American to reach space; 10 years later, he walked on the moon.
This month, the United States returns to human spaceflight after a nine-year hiatus. There is much to celebrate, including in Canada, where the Canadian Space Agency works closely with NASA. Yet these celebrations should be tempered with caution, as the Trump administration seizes the moment to challenge long-standing rules of international space law – and demands acquiescence from Canada.
On May 27, American astronauts Bob Behnken and Doug Hurley will launch from Cape Canaveral in a new model of spacecraft: Crew Dragon. This test flight, which includes a visit to the International Space Station (ISS) before the return to Earth, is the last major step in NASA’s human spaceflight certification process.
Since ending the Space Shuttle program in 2011, the U.S. has relied on Soyuz spacecraft for accessing the ISS. This reliance has precedent: Americans and Russians have been co-operating in space since the rendezvous of two Apollo and Soyuz spacecraft in 1975. The ISS itself is the result of co-operation between the U.S., its allies and Russia. The station’s operations are not affected by international crises, not even during the 2014 annexation of Crimea. Any problem in orbit, such as the air leak discovered in August, 2018, threatens everyone on board.
When Crew Dragon launches, it will be the first crewed test of a new U.S. spacecraft since the Space Shuttle Columbia first flew 39 years ago. It will also be the first commercially built-and-launched spacecraft to carry humans.
In 2008, two U.S. companies were awarded contracts to develop the technologies necessary to deliver cargo to the ISS. The idea was to enable NASA to focus on more difficult things, such as robotic exploration of other planets and of moons, comets and asteroids. The smaller of these companies, SpaceX, greatly exceeded expectations, making dozens of cargo flights and later winning the race – this time against aeronautical juggernaut Boeing – to build and test a new crewed spacecraft.
SpaceX was born in 2002 with the funds that Elon Musk received from selling his portion of PayPal. Eighteen years later, the company now conducts 20 per cent of worldwide rocket launches. Part of this prodigious schedule is SpaceX’s effort to place its own constellation of a planned 12,000 communications satellites into low Earth orbit – launching 60 at a time, roughly once every two weeks.
Then there is Starship. This 120-metre-tall, nine-metre-diameter fully reusable spacecraft is being built by SpaceX. Designed to fly to Mars, land there and return to Earth, Starship will have room for 100 passengers. Although this sounds like a folly, consider this: In April, NASA gave contracts to three companies to develop “human landing systems” for missions to the moon. SpaceX is one of the companies. Starship will be the lander.
SpaceX is just one of thousands of companies building an extraterrestrial economy. Collectively referred to as “NewSpace,” most of these companies are focused on the opportunities provided by satellites. But a few have their sights set on resources located on the moon, on asteroids and on Mars.
Space agencies, including NASA, have supported these ambitions by retrieving samples from asteroids and researching how to mine “regolith” – the loose layer of rock on the surface of a planet, moon or asteroid. Their principal interest in resource extraction is for sustaining long-duration space missions. Private companies, in contrast, are motivated by the profits they see available in extracting and processing ice and ice-bearing minerals to provide rocket fuel, radiation shielding and life support in space. High concentrations of rare-earth minerals are also of interest.
Encouraged by industry, the Trump administration has made space a priority. In 2017, it announced plans for a new space station, called Lunar Gateway, to orbit the moon and facilitate surface operations. Two years later, it announced the Artemis program. Named after the Greek goddess of the moon, the program aims to return American astronauts to the surface by 2024, the final year of U.S. President Donald Trump’s hoped-for second term.
Space also plays a role in Canadian public life. Governor-General Julie Payette is an astronaut, and the Canadarm is on the $5 bill. The Canadian government’s support for the Lunar Gateway is motivated, in part, by the knowledge that voters will enjoy seeing their own astronauts fly on Crew Dragon and walk on the moon.
At the same time, Canada’s partnership with NASA stimulates domestic research, education and economic activity. When Canada contributes components to NASA projects, such as Canadarm2 on the ISS, it supports companies that can then build equipment essential to our national security. RADARSAT Constellation, made up of three Earth-imaging satellites, provides high-resolution surveillance of our Arctic and maritime zones. It was built by MDA, the same company that builds the Canadarms.
However, unlike Canada’s participation in the ISS, Canada agreed to provide a robotic system for the Lunar Gateway before a governance regime for the new station, and its associated activities, was negotiated. This, and the value that politicians attach to the astronaut program, leaves Canada vulnerable to U.S. demands – as recent developments concerning space mining demonstrate.
For decades, most space lawyers have assumed that commercial mining was off limits because the 1967 Outer Space Treaty prohibits the “national appropriation” of the moon and other “celestial bodies” and makes national governments fully responsible for private actors. The U.S. has long been the sole dissenter on this issue. It argues that commercial space mining does not constitute national appropriation; that a lunar rock is not yours – until you pick it up.
In 2015, Congress adopted legislation that purports to give U.S. companies the right to extract, use and sell resources in space. The tiny tax haven of Luxembourg quickly followed suit and even offered subsidies to space mining companies to incorporate there.
Space experts in other countries responded, in contrast, by reaffirming the traditional interpretation of the Outer Space Treaty. The UN Committee on the Peaceful Uses of Outer Space adopted guidelines for sustainable space operations, aiming to pave the way for a new multilateral accord.
One path forward is found in the 1979 Moon Agreement, which postponed the negotiation of a mining regime to a later date while providing a mechanism for convening a multilateral conference; one that could include Russia and China as well as non-spacefaring and developing states.
Seeing this movement toward multilateralism, the Trump administration last month issued an executive order that reaffirms the U.S. position on space mining and instructs the State Department to seek expressed support for it from other countries.
The executive order goes further than the 2015 legislation by explicitly denying the widely held view that space is a “global commons.” It also goes out of its way to dismiss the Moon Agreement as irrelevant, on the basis that it has not been ratified by the U.S. and other space-faring states.
Earlier this month, the Trump administration announced the “Artemis Accords,” which it says will “establish a common set of principles to govern the civil exploration and use of outer space.” However, the accords will not be a multilateral treaty. Rather, they will be a series of bilateral agreements, concluded one on one with countries, such as Canada, that wish to join NASA’s moon program.
The content is non-negotiable. According to NASA, the Artemis Accords will “reinforce that space resource extraction and utilization can and will be conducted.” They will also recognize that mining companies have the right to establish “safety zones” around their operations to prevent “harmful interference.”
The Artemis Accords have already been condemned by Russia as a blatant move to remake space law in favour of the U.S. The first casualty of this initiative might therefore be the long and stable relationship of space co-operation between these two nuclear-armed states.
U.S. allies are also being treated badly. NASA’s choice of bilateral rather than multilateral negotiations is an application of basic game theory – specifically, the “Prisoner’s Dilemma” – whereby individual, similarly situated actors, in negotiations with a more powerful actor, are denied the opportunity to communicate with each other.
Another problem with the U.S. position is that regulation of space mining companies would be left to national governments only. This approach risks a “race to the bottom” and even the emergence of “flags of convenience” as states compete with each other to attract space mining companies through loose regulations and lax enforcement.
It is already clear that private space actors require rigorous regulation. Last year, an Israeli foundation crashed a spacecraft on the moon. The mission, which occurred without the support of any government, was conducted in an irresponsible manner – with the surreptitious placement of thousands of nearly indestructible tardigrades (micro-animals often called “water bears”) on board. Then there is SpaceX, which also broke international norms on “planetary protection” when it launched an unsterilized Tesla Roadster on a Mars crossing orbit.
Unless all actors operate in the global interest, space mining could pose a threat to science. Some asteroids contain materials that date to the formation of the planets. The permanently shadowed craters on the moon contain water and minerals from the outer regions of the solar system. What potential knowledge might be lost if these places are recklessly mined?
As for safety zones, these would provide a company with many of the benefits of territory, while relieving it of any long-term obligations of stewardship. There are analogies here on Earth, including “orphan” oil wells, which the Canadian government is now spending $1.7-billion to clean up.
A purely national approach also risks serious mistakes in policy making if proposals are not subject to the scrutiny provided by multilateral governance. Mining on the moon could loft vast amounts of tiny but abrasive dust particles to high lunar altitudes, affecting equipment both on the surface and in orbit. Stable lunar orbits could quickly become filled with single-use satellites and other forms of debris.
On asteroids, mining could create debris streams that threaten lunar operations as well as satellites in Earth’s orbit. It could even, in a worst-case scenario, cause a trajectory change leading to an inadvertent Earth impact.
Politics needs astronauts, and in Canada, astronaut slots come from providing robotics for NASA projects. Building Canadarm3 for the Lunar Gateway should ensure that Canadians will be part of future NASA missions.
Yet the Trump administration has now made it clear that states wishing to participate in the Lunar Gateway must support the U.S. position on space mining, even though it is a minority position globally. Most states, especially in the developing world, will see the Artemis Accords as just another exercise of U.S. hegemony.
The good news is Canada has been here before. Four decades ago, the chair of the drafting committee for the UN Convention on the Law of the Sea – a “constitution for the oceans” that addressed the contested issue of deep seabed mining – was a Canadian diplomat. Other Canadian diplomats were at the same time negotiating this country’s participation in the Space Shuttle program.
On the Law of the Sea, the U.S. demanded that private companies have access to seabed resources and that they be answerable to national regulators only. Most other countries wished the deep seabed to be recognized as the “common heritage of mankind,” with any mining being subject to international oversight and a portion of the revenue being shared. In the end, the latter view prevailed.
For the Space Shuttle, Canada provided the Canadarm and in return received astronaut slots for Canadians, with the first of these being filled by current Transport Minister Marc Garneau.
Then in the 1990s, Canada played a similar role in the negotiation of the International Space Station Agreement, where decision-making authority is shared between the U.S. and 14 other countries. Decision-making about operations on and around the moon should be more inclusive, not less.
Of course, now is not the time to pick a fight with the Trump administration. Canada should simply delay making a decision on the Artemis Accords until after Nov. 3, and, in the meantime, consult widely with other countries about how best to move forward.
But if the Trump administration were to push hard, we can always push back. The Lunar Gateway, given its location and relatively small size, will have to be capable of autonomous operations for months at a time. Canadarm3 is key to this autonomy, and only Canada has the expertise to deliver the equipment in time.
Just like Mr. Shepard, Canada needs to think of itself as a pilot, not a passenger, when it comes to decision-making about the future of space.
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