This Article is written by Aqsa Mirza, a Third-year law student of Dr Panjabrao Deshmukh College of Law, Amravati

Introduction

Entry into further space by humankind drew ever-growing attention to the question of resource ownership in outer space. The Outer Space Treaty of 1967 and even the Moon Agreement of 1979 set principles regarding outer space but have not yet, to this day, defined legal issues on property rights in space. Much remains uncertain at this point of intense scrutiny concerning the international legal framework over space property rights and resource extraction - all because of the nature of the players entering the fray, which includes both private companies and newly emerging independent spacefaring nations.
This article delves into extant instruments of law, digs deeper into recent trends of national developments in space law, reviews legal issues with the exploration of outer space given mining space, and goes deeper into possible solutions for urgent questions regarding property rights and resource extraction in outer space.

The Legal Framework: Outer Space Treaty and Moon Agreement

The Outer Space Treaty, which is considered the cornerstone of international space law, prohibits national appropriation of celestial bodies.[1]. It declares outer space, including the Moon and other celestial bodies, to be "the province of all mankind" and mandates that exploration and use shall be for peaceful purposes and benefit all countries.[2] The OST endorses the global commons doctrine whereby outer space is a resource available to all, free from sovereign claims.

OST does not provide for national appropriation of the celestial bodies but only prohibits it. On private rights, it makes no clear distinction as to how their resources may be treated.[3] It has brought a different interpretation of this treaty to the various nations. For example, some countries opted to pass national legislation that would allow private companies to mine the resources of space bodies. This effort of some nations seems to be a loophole in some way to the fundamental principles on which OST was formed.

The Moon Agreement of 1979, goes a further step in declaring that the Moon and its natural resources are the "common heritage of mankind" and require an international regime to govern the exploitation of those resources.[4] However, it lacks wide acceptance and ratification. Though the United States, Russia, and China major spacefaring nations have refused to endorse the Moon Agreement, its influence is significantly circumscribed. Therefore, the treaty is in effect on none of the existing issues of space mining.[5]

Property Rights in Outer Space: National and International Perspectives

In substance, the question is one of two contradictory principles: the proscription of national appropriation as expressed in the Outer Space Treaty and the perceived need for a legal framework to regulate the activities of private actors and, more compellingly, resource extraction.[6]

It is interpreted by a good number of countries that private companies can extract and own space resources, as espoused in the Outer Space Treaty. For instance, the United States Commercial Space Launch Competitiveness Act of 2015 grants legal entitlement to U.S. corporations over ownership rights of the resources extracted on asteroids and other celestial bodies.[7] Some of these critics argue that this law contradicts the general principles of the treaty, allowing for outer space to be commodified.[8] Similarly, Luxembourg, passed legislation in 2017 giving companies the right to own extracted resources from outer space.[9] Most likely, this will spur further national actions against the unilateral commercialization of space.

Although national legislation gives an assurance of legal certainty to companies, it fragments without a comprehensive international framework. Private property rights have not been covered by the Outer Space Treaty with silence on the issue, hence leaving countries to pursue their agendas. This might result in potential legal conflicts.[10] The national laws have come under criticism that these contravene the principles given by the Outer Space Treaty by allowing indirect appropriation through resource ownership.[11].

Aiming to establish a regime for international cooperation in the extraction of natural resources, the Moon Agreement, however, is ineffective because it has not received support from crucial spacefaring nations.[12]. It remains largely symbolic, as it lacks universal ratifications and fails to have practical effects in regulating space activities.[13]. Conflicting interpretations of international space law against the rise of national laws reflect the urgency for a more stringent international legal framework surrounding property rights over space.

Resource Extraction: The Legal and Economic Dimensions

The potential economic benefits of space resource extraction are enormous, in part because asteroids are saddled with staggering concentrations of metals like platinum and gold, while the Moon holds helium-3, a fuel long sought for nuclear fusion.[14]. Indeed, private investment in asteroid mining has already been substantial, and this has raised basic legal questions.

The Outer Space Treaty requires that outer space activities be brought for the benefit of all humanity, but does not say how this principle is to be applied to resource extraction[15]. National laws - such as in the U.S. and Luxembourg - now give companies clarity on the legality of their activity, but leave open critical questions about who is to share in equitable benefits and how globally space will be governed[16]. In creating these new uncertainties, these laws raise the spectre of a "resource race" in space, where only the wealthiest nations and companies will profit, and global inequalities are likely to be exacerbated.[17]

Another legal issue that arises in the pursuit of space mining is the environmental impact it bears, which has been grossly neglected.[18]. Space mining would be churning out space debris, with probable risks to future missions, and even destroy celestial bodies.[19]. Legal systems need to evolve to tackle such risks appropriately, ensuring resource extraction does not harm the environment.

The Involvement of Private Companies: Profit vs. Public Interest

Private companies have greatly contributed to developing space technologies and ensured that the venture of space mining seems quite feasible. Companies like SpaceX, Blue Origin, and Planetary Resources envision grand prospects of asteroid mining as well as other celestial objects.[20]. Their participation in space activities has progressed space exploration at a much faster pace but raises questions about the commercialization of resources meant to be "the common heritage of mankind".

The United States Commercial Space Launch Competitiveness Act of 2015 and the 2017 space mining law in Luxembourg show that the direction of policy change is to accommodate private space interests.[21] These laws give legal certainty to companies, taking this out of the greater international consensus to ensure that the benefits of space reach all humanity.[22]. The involvement of private businesses in space due to profit motive raises ethical questions on how much space resources should be commercialized.

Geopolitical and Economic Implications

Commercialization of space resources will also have far-reaching geopolitical implications. This ability to control and exploit extraterrestrial resources can dramatically shift the power balance on this planet. Spacefaring nations-the United States, Russia, China, and the European Union will stake their claims to this new frontier.[23]. Commercial space mining has tremendous wealth potential for those nations and corporations that are willing and able to invest in the necessary technology. Estimates are that space mining could generate trillions of dollars in revenue in the next decades.[24].

However, this economic potential could magnify inter-global inequalities, since only a few nations of the world and private operators have the resources and technology for space mining.[25]. In short, the benefits from space mining may go primarily to the richest of actors to the detriment of developing countries. A reason for cooperation at the international level is that an international legal framework does not currently exist to address such concerns.
The geopolitical implications are quite significant in the context of potential space resource conflicts. Absent some form of regulatory framework, resource extraction from space could evolve into a cause of international tension, not dissimilar from territory across Earth for so long.[26]. In the absence of such a framework governing the use of resources within space, conflict prevention or resolution becomes well-nigh impossible, and thus a new kind of space race focused on resource domination is possible.

Towards a New International Legal Framework

The legal framework governing resource extraction in outer space is out of date and incapable of meeting the new demands arising from commercialization and the numerous numbers of privately controlled companies entering this frontier. Several proposals are being advanced for the establishment of a new international legal framework that reflects some of the realities of space exploration in the 21st century.

One step might be to create an International Space Resource Authority, based on the model of the International Seabed Authority under the United Nations Convention on the Law of the Sea (UNCLOS)[27]. An ISRA could oversee resource extraction from space such that its development would be for the benefit of all of humanity, with a focus on sustainability and respect for the environment[28]. This will provide much-needed management of growing interest in space mining and avoid potential conflicts over ownership of resources.
Or the international community may agree on a new treaty that specifically deals with the resource extraction of space. It can ensure that there are clear norms to control the commercialization of space resources while ensuring equal benefits of space mining to all nations involved[29]. This will work if all the great nations with space exploration ambitions and the private sector take part.

Conclusion

Legal concerns surrounding the extraction of space resources are very complex and multifaceted. The international framework of space law, comprising the Outer Space Treaty and the Moon Agreement, is too narrow and cannot practically accommodate the realities of 21st-century exploration. National laws, like those of the United States and Luxembourg, provide legal certainty to private companies but undermine principles of international space law.

To ensure space remains a global common, the international community needs to establish an integrated legal regime for the exploitation of space resources. In doing so, it should either create an International Space Resource Authority or establish a new treaty to update the international legal framework in line with the growing role of private companies and the commercialization of space. If it does not, then the world can expect that a new order of competition and conflict over outer space will emerge soon with profound effects on global governance and economic development.

REFERENCES

[1] Outer Space Treaty (opened for signature 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (OST) art 2.

[2] Ibid art 1.

[3] Ibid art 2.

[4] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (opened for signature 18 December 1979, entered into force 11 July 1984) 1363 UNTS 3 (Moon Agreement) art 11(1).

[5] Ibid.

[6] OST (n 1) art 2.

[7] US Commercial Space Launch Competitiveness Act 2015, Public Law 114-90, s 51301.

[8] Ibid.

[9] Luxembourg Space Resources Act 2017, Loi du 20 juillet 2017 sur l'exploration et l'utilisation des ressources de l'espace, Journal Officiel du Grand-Duché de Luxembourg No 674.

[10] OST (n 1) art 2.

[11] Ibid.

[12] Moon Agreement (n 4) art 11(5).

[13] Ibid.

[14] NASA, 'Asteroid Mining' (NASA, 2020) https://www.nasa.gov/asteroid-mining.

[15] OST (n 1) art 1.

[16] US Commercial Space Launch Competitiveness Act (n 7).

[17] Matthew Weinzierl, 'Space, the Final Economic Frontier' (Harvard Business Review, 2018) https://hbr.org/2018/12/space-the-final-economic-frontier.

[18] Joseph Pelton, 'The Environmental Impact of Space Mining' (Space Policy Journal, 2019) 89.

[19] Ibid.

[20] Planetary Resources, 'Our Vision' (Planetary Resources, 2021) https://www.planetaryresources.com/vision.

[21] US Commercial Space Launch Competitiveness Act (n 7).

[22] OST (n 1) art 1.

[23] Bleddyn Bowen, 'Geopolitics of Space Mining' (2021) 45(2) Space Policy 101.

[24] Weinzierl (n 17).

[25] Ibid.

[26] Bowen (n 23).

[27] United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 art 156.

[28] Ibid.

[29] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) art 4.