This article has been written by Simran Bherwani, a fifth year B.A., LL.B. (Hons.) student from National Law University, Jodhpur. APPROVED BY THE EDITORIAL BOARD.
Introduction
Today, a twenty-first century space race is on the verge of beginning. The spirit and nature of this race will be different from that of the last one. There will be new actors in it and those will not be limited to nations. Private firms have begun to see commercial possibilities in the stars. The current space race will be based on economic principles, now that nations may travel into space and carry out activities there. Private companies will be motivated to engage in space activities by commercial interests including space travel and space mining. The mining of Earth’s Moon, the planet Mars, and Near Earth Asteroids [“NEAs”] holds the potential to be a very lucrative endeavour.
Moon Mining: Possibility of Construction?
As stated above, there are several tricky areas in the arena of moon mining. This is further exacerbated by the Outer Space Treaty [“OST”], 1967, the foremost treaty in the field of space law, not dealing with the principles of space exploration in detail. While many of the OST’s objectives have been met, most notably by preventing violence in space, the drafters of the OST were unable to foresee all potential problems. The foundation for space exploration has been laid down; but the lack of detail leaves the world with gaps in interpretation.
The Moon Agreement, 1979 deals with preventing commercial exploitation of outer space. However, the treaty has been considered a failure since it has been ratified by only 18 nations and none of them have had a mission to the moon. Major countries that are active in space exploration have not ratified it. The Artemis Accords attempted to fix the solution, but the issue lies in the fact that these are bilateral agreements and not binding instruments of international law.
Before the issues are dealt with, it is essential to understand the application of a relevant concept here i.e., the concept of Common Heritage of Mankind [“CHM”].
Common Heritage of Mankind
In the field of international law, the principle of CHM is omnipresent. The areas under the common heritage of mankind are those which are not subject to national sovereignty[1] but rather governed by international law.[2] While it can be argued that the moon falls into the ambit of this principle, several nations disagree on what, if any, the obligations are related to CHM.[3] According to an eminent jurist, the concept carries no judicial connotation and does not belong in the realm of law.[4] This, further, casts a shadow in the clarity of interpretation.
Analysis
The discourse surrounding moon mining has several angles to it. These angles cannot be studied in isolation since together, they form a part of a whole. In this regard, the authors put forth three key aspects, along with a critique.
- Intention Aspect – Exploration v. Appropriation
The OST states that activities dealing with “exploration and use” of outer state by any state must be for the “benefit and interest” of all nations.[5] There is thus, a limit on the freedom of use and exploration of outer space. The limitation is that the activity must be carried out for the benefit of humankind as a whole and not only for the benefit of states capable of engaging in space activities.[6] This is achieved if it furthers the maintenance of international peace and security, promote international co-operation, respects the environment and understanding and information is released to the world community.[7] According to the travaux prépartoires[8] of the OST, the extraction of minerals is included within ‘exploration and use’.[9] Only detrimental uses that directly and immediately cause damage to other countries are barred.[10]
On the other hand, the non-appropriation principle precludes the moon from becoming subject to claims of sovereignty.[11] States are entitled to use and exploit resources from the moon, provided it does not constitute a permanent claim of sovereignty.[12] In a systematic interpretation of the OST, extraction of space resources does not violate Art. II as this does not amount to territorial claims.
- Territorial Aspect – Resource v. Areas
A conundrum that arises with respect to moon mining is the distinction between resources and areas. A fundamental rule in the space law system is the principle of non-appropriation. The non-appropriation principle prevents a state from taking resources from the moon[13] for the exclusive use of the state.[14] This principle is jus cogens[15] and cannot be deviated from by any state.[16] According to eminent jurists[17] in the field such as Professor Gorove[18] and Jenks[19], the non-appropriation principle, however, does not extend to the mining of mineral resources.[20] It can be said that the principle only prohibits appropriation of ‘areas’ in outer space and does not prohibit the appropriation of mineral resources in outer space.[21] It is widely misunderstood and as a result, leads to obstacles in the way of progress of science.
With respect to resources as well, there is a layered situation. More controversially, some scholars suggest that the non-appropriation principle calls into doubt whether nations or businesses can “own” what they extract from asteroids or other space bodies.[22] There is instant customary law[23] that indicates that resources that were removed from the Moon may be owned by nations. The US brought back lunar material from the moon for scientific investigation.[24] This would benefit all nations and fulfil the criterion laid down by the OST. However, the same cannot be said for mining. Depending on the mineral, the activity can entail extraction and evacuation from the regolith.[25] This may go against the provisions of the treaty and therefore, this distinction must be taken into consideration before engaging in the activity.
- Stakeholder Aspect – Private v. State
‘Private’ entities are those which are not formally part of the state’s official bodies.[26] The OST has been interpreted in a way where the right of entrepreneurs to conduct business in space has been protected since it is not an ownership right but an enterprise right.[27] The precondition here is that they do not assert a claim of ownership, so as to prevent violation of the principle of non-appropriation.
However, the other side of the coin is that citizens derive rights from their State, and when a State agrees not to undertake certain activities, its citizens cannot frustrate that by their actions.[28] Additionally, the ban on appropriation is not just limited to territorial sovereignty claims.[29] According to a systematic interpretation[30] of the VCLT,[31] the prohibition on states’ appropriation of space also applies to private individuals.[32] Therefore, this interpretation gap needs to be addressed.
Conclusion
A fallacious interpretation of the existing treaties can have an adverse impact on the development of science and consequently, societal development. The OST has failed to keep up with changing times and has not been constructed in a way to factor in these developments. However, due to the failure of other attempts, the OST is the best chance that the nations of the world have, if they choose to engage in the activity of moon mining.
In this regard, the authors propose that there is an urgent need to construct the OST in a new light in order to pave the way for legality. This is a dangerous territory to enter into, considering that the moon is a vital natural resource, and any negligence could have an immeasurable adverse impact. Hence, the need to establish a rigid regulatory framework comes into the picture. While doing so, there needs to be involvement of not only the nations active in the space race, but also other stakeholders i.e., private players and countries with a developing space regime.
[1] Stephen Gorove, Concept of Common Heritage of Mankind: A Political Moral Or Legal Innovation, 9 San Diego L. Rev. 390 (1972) [hereinafter Gorove].
[2] Harminderpal Singh Rana, The “Common Heritage of Mankind” & the Final Frontier: A Revaluation of Values Constituting the International Legal Regime for Outer Space Activities, 26 Rutgers L.J. 225, 228 (1994).
[3]Jeremy L Zell., Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer Space, Minnesota J. Int’l L (2006).
[4] Gorove, supra note 4, at 402.
[5] OST, Article 1; Harrison Schmitt, Return To The Moon 44 (2006).
[6] Stephan Hobe & Niklas Hedman, Preamble, in Cologne Commentary on Space Law 22-23 (Stephan Hobe et al. eds, 2009) [hereinafter Cologne Commentary].
[7] Stephen Gorove, Freedom of Exploration and Use in The Outer Space Treaty: A Textual Analysis and Interpretation, Denver J. Int’l L. & Pol. 95 (1971).
[8] The travaux prépartoires consist of the record of the discussions that took place during the negotiation of a treaty. As per Article 32 of the Vienna Convention on the Law of Treaties [“VCLT”], the preparatory work of a treaty can be referred to in order to ascertain interpretation.
[9] Statement by Ambassador Arthur J. Goldberg before General Assembly Committee I (Political and Security), 16 Dep’t Statebull 81 (1967).
[10]Stephan Hobe, Article I, in Cologne Commentary on Space Law 36-39 (Stephan Hobe et al. eds, 2009).
[11] OST, Article II.
[12] Sourav Nath & Somdutta Bhattacharyya, Property Rights on Moon: The Principle of Non-Appropriation and the Exploitation of Natural Resources of Moon, 53 Proc. Int’l Inst. Space L. 599 (2010).
[13] Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Rep. on its 10 Sess., 152 – 169th mtg., August 3, 1966, 6, U.N. Doc. A/AC-105/C.2/SR.70 (June 29, 1971) (statement by the Representative of France).
[14] Stephen Gorove, Interpreting Article II of the Outer Space Treaty, Fordham L. Rev. 349, 352 (1999); U.N. GAOR, 21st Sess., 1492 plen. mtg., at 47 U.N. Doc. A/C.1/PV.1492 (December 17, 1966).
[15] Valérie Kayser, Launching Space Objects: Issues of Liability and Future Prospects 26 (Ram Jakhu et al. eds. 2001).
[16] Articles on State Responsibility, Article 26; Vienna Convention on the Law of Treaties, Article 53.
[17] Article 38(1)(d) of the Statute of the International Court of Justice [“ICJ”] lays down the opinions of highly qualified publicists as a source of International Law. Hence, their opinions carries weightage in the ICJ.
[18] Stephen Gorove, Studies in Space Law : Its Challenges and Prospects 82-84 (1977).
[19] Wilfred C. Jenks, Space Law 275 (1965).
[20] Id.
[21] John G. Wrench, Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining, 51 Case W. Res. J. Int’l L 437 (2019).
[22] Fabio Tronchetti, The Non- Appropriation Principle as a Structural Norm of International Law: A New Way of Interpreting Article II of the Outer Space Treaty, 33 Air Space L. 277 (2008).
[23] Instant customary law is a concept that states that no long-standing practice is required for the existence of the customs, i.e. that a single act accepted by or at least not opposed by other countries is sufficient.
[24] See https://www-curator.jsc.nasa.gov/lunar/samreq/samreq.htm
[25] Eugene N. Cameron, Helium Mining on the Moon: Site Selection and Evacuation, https://adsabs.harvard.edu/pdf/1992lbsa.conf..189C.
[26] US National Space Policy, (28 June 2010), www.white house.gov/sites/default/files/national_space_policy_6-28-10.pdf.
[27] Id.
[28] Louis de Gouyon Matignon, The Lawfulness Of Space Mining Activities 29 (2019) [hereinafter Louis].
[29] Gabrielle Letterre, Providing A Legal Framework For Sustainable Space Mining Activities, University Of Luxembourg (2017).
[30] The OST has to be interpreted according to the rules of the Vienna Convention on the Law of Treaties [“VCLT”], and systematic interpretation is one such rule. It means looking into the context of the treaty with the view that it is whole together.
[31] Vienna Convention on the Law of Treaties, Article 31.
[32] Louis, supra note 28, at 87.
