The Starry Heavens Above Us And International Law Around Us - Who Can Exploit Outer Space?

Written by Farah Ahmed H. Alaradi (BA Law and Anthropology)

The ownership of outer space is not a question that has particularly plagued global affairs in recent years. The regime of international law that governs space is arguably one of the most effective currently in existence, comprising five relatively short treaties and five declarations of legal principles that have seen respect from member states of the United Nations. Its supposed effectiveness lies in the fact that it has seen virtually no disobedience since the Outer Space Treaty’s inception, and therefore has also seen little critical legal engagement from member states of the UN. Compared to the oft-litigated and extensive Convention on the Law of Sea, outer space law has no designated international court or tribunal, nor line of precedent to follow. The issue of the governance of space has been left to an imagined future, one in which the events of Frank Herbert’s Dune have manifested themselves into reality and humanity rules the galaxy. This is an unsustainable stance, as the desire of governments to seize space for themselves and map their own influence and politics onto it only escalates. A review of the legal regime governing outer space is necessary to avoid transnational conflicts becoming interstellar ones.

The 21st century space race is not the demonstration of scientific prowess and threat of arms development that the original space race was. The new millenium’s space race is far more than just the colonial conquest of new territory (though that is certainly a factor), but also the desire to take it apart for commercial use. In this new, privatised space race, the issue of ownership and what is permitted to be done outside of the Earth. Can outer space be owned? Can the resources of other planets be extracted for use on Earth? These questions also become more pertinent as the Earth itself runs out of natural resources. If global rates of consumption and development do not slow down substantially, both the private and public sector will have to turn to alternative means of resource gathering.

The recent interest from states in deep sea mining- notably Norway’s now suspended plans to mine in the Arctic ocean- is indicative of the Earth’s resource crisis and the drastic solutions being taken to compensate. Despite the potentially disastrous effects that environmentalist groups have repeatedly warned of, nations like China have still continually pursued it. While the relevance of deep sea mining to the governance of outer space seems minimal, it is currently the most analogous thing on Earth to the possible extraction of resources from space. Viewed from a legal standpoint, both deep sea mining and asteroidal mining (the most commonly proposed form of space resource extraction) deal with the use of the global commons- the supranational pools of resources outlined in international law which are free for all to use. Those who hail deep sea and asteroidal mining as the solution to the global supply chain crisis are seeking to take the lion’s share of the global commons for themselves and leave others trailing in their wake.

However, there is a distinct difference between the oceans and outer space. The world’s oceans are protected by the Convention on the Law of the Sea. The UNCLOS also draws borders and distinctly defines ownership of specific regions of the ocean (though this has not stopped all ownership disputes- such as the issue of the South China sea). Violators of UNCLOS can be brought before a specialised tribunal, whose decisions are binding and whose scope also covers issues of climate change and environmental destruction. While deep sea mining is technically permitted under the convention, there are additional requirements to begin mining and the general principle of free use and sharing that underlies the agreement results in political pressure to stop such operations. Even if the legal framework of international maritime law is not perfect, it is clearly defined and carries the threat of punishment should it be disobeyed. The law of the sea is well established, and attempts to undermine it have generally been unsuccessful.

Outer space is part of the global commons, but is governed by a grossly out of date treaty from a time in which the commercialisation of outer space had yet to even be conceived. In 1967, when the Outer Space Treaty was completed, only three countries had successful space programs. Space was nowhere near as accessible as it has since become, and the exploration of it was a metric for humanity’s progress and not a means to find new territory to harvest resources. There are now 77 established space agencies globally, whose activities are governed by a treaty that had not considered the possibility of their existence. As nations continue to develop their space agencies and programs, outer space only gets more crowded. Unlike the oceans, very little exists to tell them where the red line is drawn.

Article 2 of the Outer Space Treaty clearly states “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.” This wording seems relatively clear at first glance- it answers the question “who owns outer space?” with a simple “nobody”. Upon closer inspection, article 2 is actually unsuccessful in answering the question of  who can exploit outer space’s resources (if anyone), and how. As UNCLOS demonstrated, the global commons can still have borders drawn across certain parts for designated use by a state; simply stating that space is not subject to ownership ‘by any other means’ does little to explain what actions can be constituted as an attempt to claim ownership.

This failure of the treaty is already being taken advantage of by those who wish to get a leg up in the new space race- the Artemis Accords have already been in place for 5 years, supposedly having been brought into force to update international space legislation in line with the aims of the Treaty. In reality, the Artemis Accords seem to be an attempt to circumvent article 2’s restrictions on national appropriation. Section 10 of the Artemis Accords attempts to justify this circumvention by stating that ‘...the extraction of space resources does not inherently constitute national appropriation’ and that extraction can still adhere to the provisions of article 2. In a body of international law that acknowledges the concept of ‘resource sovereignty’ and its necessary connection with self-determination and statehood, the notion that resource extraction does not constitute some sort of national appropriation feels ill-fitting.

The only five nations on Earth that have domestic legislation covering the ownership of resources extracted from space- Japan, the UAE, the US Luxembourg and India - have all signed the Artemis Accords. Such laws clearly conflict with article 2 by allowing citizens of nations, and by extension the nation itself, to carve out dedicated portions of space for the extraction of their own resources. While non-binding, the Accords have been able to draw so many signatories by allowing states access to an alternate rulebook by which they can justify violation of the Outer Space Treaty. The US’s disregard for the standard procedure of amending international law in favour of a series of bilateral agreements are also a cause for concern; it was effectively able to undermine the authority of the 1967 treaty in a way that would never be attempted with UNCLOS in the modern day. The axis of global power has a heavy impact on international law as a whole, and the global North has evidently taken advantage of this fact to get a head start on resource collection.

All of this has yet to even touch upon the issue of corporations extracting outer space resources. As it was such an inconceivable notion at the time of, the Outer Space Treaty makes no mention of corporate or commercial activities at all. This is the most pressing issue currently facing the development of space law- space was still the territory of governments in the mid-20 century and the Treaty’s wording reflects this. Part of the appeal of the Artemis Accords comes from section 10 creating a clear pathway for commercial activities to continue and evolve in outer space without being deemed a violation of the 1967 treaty. As national space agencies continue to legitimise corporate expansion into space, like NASA’s purchase of regolith harvested by independent startups, regulating corporate activity in space only becomes more necessary. The Low Earth Orbit area is becoming increasingly more crowded, and the new global race to the bottom has only just begun. Even at this early stage, the gap between the global North and South has been projected onto outer space, as wealthier nations dominate the physical domain of outer space, grant their citizens ownership rights over extracted resources and rewrite international legislation to permit their extractive activities.

Is the solution, then, to relent and introduce a standard of international property law that governs space and strip these wealthier nations of their first-mover advantage and level the playing field? Some have proposed that outer space property law could still respect article 2, by relying on legal mechanisms where nations may govern the actions and assets of citizens that do own space property rather than granting a nation sovereignty over an area of outer space. That would require a level of cooperation in the passing of international legislation that would be unlikely to arise in the current political landscape. Creating in which outer space comes to slowly reflect the political situation of the Earth and all of its inequalities is also undesirable. If outer space is the new frontier, shouldn’t it be free of the Earth’s baggage? The destruction of the global commons on Earth in the name of capitalism by developed nations is already rife. Replicating the failures of industry on Earth in outer space would not be progress for mankind.

Some have also called for the creation of a ‘space court’; an international tribunal made in the image of the International Tribunal on the Law of the Seas. However, this is arguably unnecessary. The Permanent Court for Arbitration has already implemented rules relating to disputes surrounding outer space, and individual states such as the UAE have already begun setting up designated tribunals. The International Court of Justice also has jurisdiction over any space-related disputes between states by virtue of the Outer Space Treaty. The issue here does not lie in the institutions or the mechanisms of enforcement (any more than it does in any other issue of international law), but in the governing statute. The Outer Space Treaty must be updated to bring it into the 21st century and help address the issues plaguing space governance that are slowly making themselves known.

If we have collectively failed to protect the rest of the global commons, then we owe it to ourselves to keep this final frontier in pristine condition. The legal regime governing outer space must be updated and made significantly less forgiving; those attempting to bypass the clear restrictions placed by the treaty to help facilitate corporate exploitation and stratify outer space using Earth’s geopolitics must be sanctioned. If no action is taken now, outer space may fall prey to the same fate as the other areas of the global commons- over-extracted, industrialised and polluted.