Article II of the Outer Space Treaty states that outer space cannot be nationally appropriated, and this restriction applies to the Moon and all other celestial bodies. However, in 2015, the United States of America, a party to the Treaty, passed the U.S. Commercial Space Launch Competitiveness Act, where Chapter 513 of the Act states that United States citizens engaged in commercial space activities are entitled to asteroid and space resources obtained by them, and may possess, own, transport, use and sell the same. It further states that this must be done in accordance with the international obligations of the United States, and there is a disclaimer that the United States does not assert sovereignty, exclusive rights, jurisdiction or ownership with regards to any celestial body through the Act. Space resources under the Act are defined to be any “abiotic resource” situated in outer space (§ 51301), however, it must be clarified that there exists no explicit reference concerning the Moon and other celestial bodies. However, recently, on April 6^th, 2020, President Trump passed an Executive Order under the Act, stating that the Moon, Mars and other celestial bodies are open for Americans to extract resources from. The Executive Order further dismissed the Moon Agreement (§ 2), and stated that the United States does not view outer space as ‘global commons’ (§ 1). In this context, a number of questions arise regarding the legality of resource extraction from outer space and the statement that space is not within the realm of global commons.

The Outer Space Treaty and Plugging the Gaps

The Outer Space Treaty has 110 parties, and the principles codified in it were widely accepted as customary international law even before the Treaty. Some argue that these principles may have even reached the status of jus cogens, and that even states which are not parties to the Treaty have erga omnes obligations in relation to these norms. The Moon Agreement, on the other hand, was unsuccessful – it was not ratified by a single space-faring nation. The Agreement states that the Moon and its resources are the common heritage of mankind, prohibits the exploitation of its resources without the establishment of an international regime for governance, and states that these resources cannot become the property of any State, organisation, entity or natural person. But since neither the United States, nor any other space faring nation is a party to this Agreement, Trump rightly stated that it is not an ‘effective or necessary instrument to guide nation states’. Therefore, only Article II of the Outer Space Treaty is of material consequence.

Some have argued that there is a loophole in Article II of the Treaty concerning the pertinent issue  that since only national appropriation is prohibited, there is nothing to stop individual appropriation of outer space, the moon or other celestial bodies. However, this argument cannot be said to be well founded. Article VI of the Outer Space Treaty states that State parties are responsible for national activities in outer space, whether they are carried out by government or non-governmental entities, and must ensure compliance with the Treaty. Therefore, States bear responsibility for the actions of private entities and individuals in space as well. Any other interpretation would be counter-intuitive and would allow States to avoid their obligations under the Treaty, by ‘acting vicariously’ through private businesses. 

Drawing from UNCLOS: Property Resources in Outer Space and in the Seabed

Despite there not being a loophole for individuals in Article II of the Treaty, it still may be legal to commercially exploit space resources. There is a distinction between sovereign ownership of land and property rights in resources extracted from that land – i.e., between ownership and use. Reference, in this context, can be made to the United Nations Convention on the Law of the Sea (“UNCLOS”). The seabed is similar to outer space in the sense that it is outside the purview of state sovereignty and it is rich in resources but requires expensive and complicated technology for the purposes of their extraction. 

Articles 136 and 137 of UNCLOS state similar principles to the Outer Space Treaty – that the seabed and its resources are the common heritage of mankind, and no state or person can appropriate or claim sovereignty over any part of the same. Under UNCLOS, the International Seabed Authority was established, which regulated seabed mining through regulations and licensing. Clearly, property rights in resources and land can be distinguished from each other under UNCLOS, and the same can be envisioned with regard to outer space and the Outer Space Treaty. 

The Way Forward

In order to ensure future cooperation in outer space, a similar agreement should be made in order to establish an international authority that regulates the exploitation of resources in outer space. This is not unheard of, with the International Telecommunication Union ensuring cooperation in the allocation of satellite radio spectrums and orbits, particularly the geostationary-satellite orbit, which is said to be the most valuable space resource till date. In this regard, Trump’s statement in his Executive Order seems to be inappropriate. While he stated that the United States does not view outer space as ‘global commons’, the seabed certainly is a global commons, and the UNCLOS has demonstrated that it is possible to ensure private investment in global commons, while preserving the ‘common heritage of mankind’. Therefore, such a statement may prove to be an impediment against the establishment of an organisation that ensures cooperation and allocation. Incidentally, this also comes at a time when other countries are following suit, with Luxembourg passing a legislation similar to the United States Commercial Space Launch Competitiveness Act, giving its companies the right to exploit space resources.

Russia has criticised the Executive Order stating, “attempts to expropriate outer space and aggressive plans to actually seize territories of other planets hardly set the countries (on course for) fruitful cooperation.” Russia compared the United States’ intentions to be akin to colonialism, and that they would not accept the colonisation of space. However, Russia has, in the past, put forth its intentions to set up a permanent base on the Moon.  Similarly, China and India have also expressed their rationale and justifications concerning exploitation of resources in outer-space, particularly in light of the stance taken by other powerful nations. 

While Trump’s Executive Order has received criticism, it is for the most part in compliance with the Outer Space Treaty. The exploitation of resources without national appropriation is possible, as evidenced by the UNCLOS. However, in order to ensure peaceful cooperation and equitable distribution, outer space should be acknowledged as a global commons. The Outer Space Treaty came into force during the Cold War, and one of its primary concerns was to mitigate the nuclear charged tension between the United States and former Soviet Union. Though it has, so far, been effective in ensuring peaceful cooperation in space (since its inception in 1967), technology has advanced substantially and the commercial exploitation of space resources is finally within reach. There are also a number of new players exploring the final frontier, many with nuclear capabilities. Considering the impending gold rush in the wild west of space, it becomes critical to ensure continued peace and cooperation. For this, the Treaty needs to catch up with the times and establish a lasting framework that will do justice to the last fifty-three years.

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Nikhil George is a final year law student at Jindal Global Law School, Sonipat.

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Image: Associated Press.