Weakened International Treaties Leading to Space Resource Nationalism
The author, Himali Sylvester, is a 5th year BA-LLB student at St. Joseph's College of Law, Bangalore. She was also the winner of last year's 'Write Your Wrong' article writing competition hosted by The ParaleGal.
Many ecologists and environmental scientists believe that, in a few decades, human beings need to look beyond the earth to procure resources for human sustenance and thus, exploration of space is an essential step in that regard. Outer space is a bewildering domain due to the plethora of resources that one can obtain from it, but the question remains as to who can and how much of the space’s resources can be extracted for human survival by nation-states.
In the year 1967, for the first time, the Outer Space Treaty (OST) was enacted to regulate and govern space and other celestial bodies as a potential resource base for mankind. The Outer Space Treaty (OST) laid out many important principles pertaining to the governance of space. The treaty introduced the principle of ‘common heritage’ meaning that the space is open to exploration by all states irrespective of their level of economic or scientific development. It is a principle of international law which holds that defined territorial areas and elements of humanity’s common heritage should be held in trust for future generations and be protected from exploitation by individual nation states or corporations .
The treaty particularly established the ‘non-appropriation principle’, which disallows national appropriation of resources by any single nation. Nations cannot claim sovereignty over the Moon or other celestial bodies. However, the treaty remains silent on the appropriation of resources by private entities.
The principle of non-appropriation partially answers the question of ‘who can appropriate space resources’ but leaves room for many other ambiguities. In the context of propriety rights, nations can claim propriety rights over objects sent by them to space but cannot claim propriety rights in outer space itself. All nations however are treated equally, implying that the outer space is open for procurement by any nation as long as they possess adequate resources to achieve the same.
About a decade later, in the year 1979, a framework of laws was developed as the Moon Agreement, 1979, which sought to establish a legal regime to control and direct space resource utilization. Yet, the Agreement was considered imprecise by many ratifying states as it still did not completely answer the question of ‘who can’ and ‘how’ space resources could be gathered?
THE LACUNAE IN THE AFOREMENTIONED TREATIES WHICH ALLOW FOR SPACE NATIONALISM
The OST establishes a hazy premise regarding appropriation of resources by nation-states. The Articles in the treaty gives nation-states the right to use facilities and other equipment to utilize celestial bodies and outer space for peaceful purposes but states cannot claim sovereignty over the resources. In simpler terms, the states are allowed to exercise quasi-sovereign powers over the resources. The prohibition on ‘national appropriation’ only bars states from aspiring to achieve sovereignty as an end but can always use it as their means to utilize resources. Therefore, the exercise of sovereign powers is lawful to the extent provided in the OST, giving states a degree of sovereign control over them. Furthermore, the Moon Agreement recommends for the establishment of a separate international regime for space resources but does not take a stance on how and when the same can be achieved. Therefore, many space-farer countries failed to ratify this agreement.
The Outer Space Treaty’s stance on propriety rights is also dim. It is quite explicit that nation-states cannot claim property in outer space. However, it has not been ascertained as to whether private individuals can claim propriety rights in outer space or not. Some scientists believe that the said treaty does not apply to ‘private individuals’ and therefore, they are excluded from its purview. In other words, they suggest that private individuals can claim their ‘right to property’ over celestial bodies. An analysis of the above would certainly suggest that allowing ‘individuals’ to claim property rights is as good as allowing a nation-state to be enfranchised with propriety rights in space, therefore, giving a leeway for resource nationalism.
Due to the significant loopholes in important treaties governing space resources, many nations have begun to formulate their own national legislation governing space or have taken steps that undermine the existing treaties, a significant move towards the process of establishing sovereignty in space or claiming territorial jurisdiction, a stance that may prove to be substantially detrimental for non-space farer countries which have just begun to explore space as having an alternative resource potential . In a recent executive order signed by US President Trump, America’s vision and path forward on space resource utilization had been detailed. A thorough reading of the order expounds that the US is vehemently trying to prevent the Moon Agreement from having an impact on current and future space affairs, and there are other countries as well who feel similarly .
Let us now look at global forces that are moving towards nationalizing space with their own national legislation and national plans:
United States of America (USA)
On October 13th, 2020, the US composed a set of principles for space behavior built upon the existing legal regimes (OST and Moon Agreement) called the Artemis Accords which was signed by the space agencies of 7 other countries including the UK, Canada, Australia and Japan, among others. The Artemis Accords is not a UN-treaty as signatories believed that the ratification process through the UN would be tedious and time-consuming. The signatories to the Accords collectively believed that moon also has value for long-term scientific research that could enable future missions to Mars-activities that fall under a regime of international space law widely viewed as outdated.
Rightly so, the Artemis Accords have taken a stance on space resource utilization and territorial claims. The most important assertion in the aforementioned treaty is the allocation of ‘safety zones’ wherein member states reserve their safety zones in outer space to avoid any sort of harmful repercussions. This implies that member states can reserve safety domains in outer space under their own sovereignty for preventing ‘harmful interference’ from other space-exploring states. Under the guise of creating safety spaces, it will become easier for nations to claim sovereignty in outer space, thus, leading to space nationalism.
People’s Republic of China (China)
China, motivated by US’s approach towards space activities, has set an extensive agenda in its pallet. China is an essential player in space due to its recent spatial success of landing on the dark side of the moon, a maiden success for the nation, making it the first nation to accomplish the same. The Chinese government identifies its vision in space as ‘building China into a space power in all respects’. This suggests that China values landing in outer space as a goal of paramount importance.
According to Namrata Gowswami, the Chinese government documents exploration of space to earn resources focused on the overall national development of the country. A Chinese Lieutenant General thus remarked that, "The Earth-Moon space will be strategically important for the great rejuvenation of the Chinese nation." (p. 83) Similarly, the Chief Scientist of the Chinese Moon program, Ouyang Ziyuan, said in 2002 that "the Moon could serve as a new and tremendous supplier of energy and resources for human beings ... this is crucial to sustainable development of human beings on Earth ... whoever first conquers the Moon will benefit first" (p. 77). Chinese space experts also assert that "enhancing national prestige and international status remain prime motivating factors with regard to China's space goals". Though not explicit, the above, elaborately spells out the intentions of the Chinese government in making outer space a Chinese territory.
On one hand, it can be observed that the United States has explicitly taken a step forward by enacting a legislation that works to govern its space activities and under the facade of creating safety zones, seeks to expedite the process of exercising sovereign domains in outer space. US has taken advantage of the loopholes in the existing international legal regime to do so. On the other hand, China seems to have adopted a more implicit approach where it seems to portray to the world that it looks at space and its celestial corollaries, as ‘global commons’, in pursuance of the ‘non-appropriation principle’ set under OST. However, the nation’s long-term goals and agendas have proven otherwise.
Prudently so, no country can aspire to conquer outer space and become a global power, without nationalizing and claiming territorial jurisdiction over those resources. Such claiming of territorial space and jurisdiction has today earned the nomenclature of ‘space nationalism’ or ‘astro-nationalism’. The current international treaties are broad, imprecise and inconclusive to scrutinize both USA’s and China’s actions in outer space. As a result, their move towards ‘nationalizing outer space’ may turn out to be just like another Middle East conflict or South China Sea Dispute, having deteriorating repercussions for smaller and impoverished nations, defying equality in procuring space resources that the OST and Moon Agreement fundamentally sought to achieve.
 Prakhar Maheshwari, Property rights in outer space, ACADEMIKE (Jan. 16, 2015), https://www.lawctopus.com/academike/property-rights-in-outer-space/.
 Rajeswari Pillai Rajagopalan, Amidst a pandemic- Donald Trump signs order to mine on the moon (Apr 12, 2020), https://thewire.in/world/donald-trump-outer-space-moon-mining.
 Supra note 2.
Anne-Sophie Brändlin, The Earth is exhausted - we're using up its resources faster than it can provide, MADE FOR MINDS (August 1, 2017). https://www.dw.com/en/the-earth-is-exhausted-were-using-up-its-resources-faster-than-it-can-provide/a-39924823
Namrata Gowswami, China in Space: Ambitions and Possible Conflicts, AIR UNIVERSITY PRESS (March 2018), https://www.jstor.org/stable/pdf/26333878.pdf?refreqid=excelsior%3Ac309d5eab5563459e6b7804ef74829c4
Image Credits: https://brainberries.co/interesting/10-little-known-facts-about-nasa/