Who owns space resources?

Future. SpaceX has recently made history by achieving the first manned flight by a private company, making it possible for others to access space and extract resources. Metro investigates what to expect

Por Daniel Casillas

Elon Musk's success with the Crew Dragon launch has reopened a debate regarding who owns space that has been going on for several decades. In 1967 it bore its most prominent fruit when the Outer Space Treaty was adopted, which established that outer space is a 'world common heritage,' not subject to the jurisdiction of individual states or the possible division into 'national' parts.

"This treaty is, in my view, the most important because it has been signed and ratified by most of the world's states. It is considered the 'Magna Carta of Space' or the 'cornerstone' of space legislation," Juan Manuel de Faramiñán Gilbert, professor of international public law and international relations at the University of Jaén, Spain, explained to Metro.

Although this treaty is the only one that addresses issues such as the ownership of space and what is in it, the truth is that there have been many changes and technological advances since it entered into force in 1967, such as the arrival of private companies to space.

Experts believe that the discussion about ownership of space should be updated and continued today because often countries, companies and individuals are trying to find gaps in regulation.

“The commercial spaceflight by SpaceX continues to highlight how private entities are increasingly involved in space activity. Therefore it may add urgency to these debates as the international community continues to grapple with questions around the appropriation of space resources by both countries and companies,” Jill Stuart, an academic specializing on outer space politics, ethics & law at London School of Economics, the UK, told.

But commercial manned flight is not the main concern among experts. What generates most controversies is the possibility of future space mining. Yes, there are already companies interested in extracting mineral resources from other planets and celestial bodies like the Moon or asteroids.

“What has become a matter of debate relatively recently, namely since a handful of (mainly the U.S.) companies seemed ready to go and mine space resources, is what that legal set of clauses means for the ownership of resources in space”, Frans G. von der Dunk, professor of space law at the University of Nebraska-Lincoln's College of Law, the U.S., told Metro.

For example, some local laws have already begun to generate controversy, because they establish that those who obtain mining resources in space can appropriate them. The United States (in 2015) and Luxembourg (in 2017) have now passed national laws which state that private companies who register launches from their countries will be allowed to appropriate mined resources. Possible overexploitation of these natural resources and the effects this might have on space is a matter of concern.

"There is a danger to the ecological balance of space if there is a kind of 'mineral fever' in which companies and states launch themselves into the indiscriminate plundering of these natural resources," Faramiñán Gilbert added.

The arrival on Mars by humans is also related to the issue of space ownership since there is a possibility that a company or a country that arrives on it first may seek to declare the Red Planet its property. However, experts believe that it is very well established in the 1967 Outer Space Treaty that no planet or celestial body can be declared the property of anyone.

According to Frans G. von der Dunk, “Legally speaking, the Moon, planets, asteroids and any other celestial bodies all belong to the same basket legally speaking. They are all part of the global commons of outer space and therefore not subject to national appropriation.”

Finally, experts assure that The Outer Space Treaty of 1967 continues to be a very useful legal framework for regulating human activity in space. However, they recognize that it could be updated.

“Although I appreciate that new regulations need to be overlaid onto the Treaty in order to reflect changes in space activity and technology I feel that the Treaty itself should still form the background for understanding how we approach space ownership. It has done this well for over half a century and that is not political capital that should be wasted,” Jill Stuart concluded.

3
challenges of the current space law

 

Space mining
The possible extraction of resources is, perhaps, the greatest challenge for space law, because there may be legal loopholes that generate controversies over the ownership of mined materials.

Return to the Moon
Although humanity reached the Moon more than 50 years ago, the return to the Earth satellite could generate conflicts, as many countries are preparing lunar missions and the United States recently approved the Executive Order of April 2020, which states that this country “does not consider extraterrestrial property as a global commons and therefore considers it susceptible to private appropriation,” Juan Manuel de Faramiñán Gilbert, professor of international public law and international relations at the University of Jaén, Spain, commented.

Conquering Mars
Although The Outer Space Treaty of 1967 states that no one can claim ownership of a planet, the arrival of countries and private companies on Mars and the possible construction of bases on that planet could generate legal disputes.

Q&A

Frans G. von der Dunk

Frans G. von der Dunk,
professor of space law at the University of Nebraska-Lincoln's College of Law, the U.S.

Q: Did debate regarding space ownership reopen after SpaceX success?
– Actually, I think there are two different issues at stake here which should not be confused. The one has already been closed decades ago, the other is of a more recent nature and to some extent has not closed since.
As to the first, the ownership of outer space as such has never been seriously questioned since the 1967 Outer Space Treaty in its Art. II provided for outer space to be a kind of ‘global commons’, not subject to individual state jurisdiction or potential carving it up into ’national’ parts, as further backed up by Art. I which forcefully introduced the freedom of exploration and use for all States as the default legal baseline. As to the second, what has become a matter of debate relatively recently, namely since a handful of (mainly US) companies seemed ready to go and mine space resources, is what that legal set of clauses means for the ownership of resources in space.

Q: Tell more about controversies related to space mining.
– Here, there are basically two lines of thought. One is to consider, following the idea of a 'global commons’ and the general freedom of State activity in outer space, to allow individual States to harvest those resources and/or allow their own private sector to do so, as long as all activities are compliant with whatever limitations international space law imposes upon them and those private sector activities are properly licensed. This approach has given rise to 2015 U.S., 2017 Luxembourg and 2020 UAE legislation officially allowing respective private sector entities to harvest such resources following the grant of a license/authorization. A number of further countries are discussing with those three what those limitations should exactly be, while basically condoning the approach of allowing for unilateral mining initiatives. The other approach, legally speaking less tenable and politically speaking apparently losing ground but still not defeated, is to argue that since outer space effectively belongs to all States also the resources there belong to all States jointly, which is usually taken to mean that only an international (licensing) regime – yet to be established – would legitimize commercial mining.

Q: So, does anyone own the space?
– One has to separate three things here: (1) spacecraft sent into outer space (which continue to belong to whoever owned it before it was launched); (2) outer space as an area, and (3) the resources in outer space. As for the last two, as per the previous answer that’s the part which is at least politically disputed, whereas in the legal realm the consensus is growing that whoever harvests those resources, as long as operating within the confines imposed by space law, is entitled to own and then market and sell them.

Q: What about the 1967 Outer Space Treaty?
– It was ratified by all spacefaring nations of any importance in that regard, so it is commonly recognized as providing the legal framework for all activities in, or directed towards, outer space. It imposes a number of key principles, of which – apart from the ones already quoted above – the responsibility and liability of States also for activities of their private sector entities, the obligation to desist from the stationing or obtaining of weapons of mass destruction, the general principles of international cooperation and consultation in case of potential harm being caused to other State’s legitimate space activities, and the application of general international law, including the UN Charter, to outer space, are the most important ones. The treaty itself has given rise to a few further conventions elaborating specific details thereof, as well as served as the framework within which for example currently the subject of space debris and long-term sustainability of space activities is being addressed.

Q: Could this agreement be changed?
– Technically, the Outer Space Treaty can be changed, since Art. XV allows for amendments; which, however, in order to enter into force (and then only for those States ratifying such an amendment), require a majority of the current States parties (or, currently, 61 out of 110). Given moreover that most of the clauses of the treaty are recognized as representing customary international law, meaning that they are binding regardless of whether a country has actually become a party to the treaty, and even stepping out of the treaty (allowed as such as per Art. XVI) does not relieve a State of relevant obligations, the chances of this happening are fairly slim – it certainly has never been seriously attempted before.
As to the second part, as indicated earlier, no country can claim ownership over any part of outer space pursuant to Arts. I & II. When the Apollo astronauts back in 1969-1972 place a number of US flags on the Moon, NASA and the U.S. government went to great lengths to ensure the rest of the world that this by no means meant the U.S. was now claiming parts of the Moon as U.S. territory, which would have been in violation of the Outer Space Treaty to begin with. Since this is part of the customary international law I referred to, unless at least all the major spacefaring powers would agree, this rule is not likely to be changed.

 

Q&A

Jill Stuart

Jill Stuart,

an academic specializing on outer space politics, ethics & law at London School of Economics, the UK

 

Do you think that with the first commercial manned flight made by SpaceX the debate on the ownership of space can be reopened?

Actually I would not say ‘reopened’ as it has never really been ‘closed’. Although outer space law established in the 1960s and 1970s sought to definitely establish ownership over celestial territory, there have always remained debates and questions around who owns space. There have also always been entities (countries, companies, individuals) that have sought to find loopholes in the regulations. Having said that, the commercial spaceflight by SpaceX continues to highlight how private entities are increasingly involved in space activity. Therefore it may add urgency to these debates as the international community continues to grapple with questions around the appropriation of space resources by both countries and companies.

Who owns what's in space?

In one sense ‘everyone’ and in another sense ‘no one’. This is because the Outer Space Treaty of 1967 states that outer space is ‘the province of all mankind’ (everyone) but also that ‘outer space cannot be nationally appropriated’ (no one). In practical terms, this means that no part of space can be claimed, from celestial bodies to comets to orbital slots.

However some people have argued that there is a loophole because of the use of the phrase nationally appropriated in the Treaty. The argument goes that this means non-state entities could claim parts of outer space. However that was not the intention behind the Treaty and hence is very unlikely to hold up.

Having said that, it is not entirely clear whether resources extracted in space and for example used in situ could feasibly be appropriated. For example, if helium three was mined from the Moon, could it be used to fuel space craft without violating the ‘appropriation’ clause? What if it was used ostensibly ‘for the benefit of all mankind’? Both the United States (in 2015) and Luxembourg (in 2017) have also now passed national laws which state that private companies who register launches from their countries will be allowed to appropriate mined resources. How this would work with these countries’ international obligations, for example to the Outer Space Treaty, are not entirely clear.

Also, many objects have been collected from space for scientific research purposes, and it is not entirely clear where the limits on this sort of activity lies. America’s Apollo missions to the Moon (1963-1972) brought collectively brought back 832 pounds of space rock to Earth.

Could you tell us a little more about the 1967 Outer Space Treaty

The Outer Space Treaty of 1967 was widely ratified by the world’s countries and is sometimes referred to as ‘The Outer Space Constitution.’ For decades it has formed the background regime to govern outer space. It originated in the Cold War context and the escalating Space Race between the United States and the Soviet Union. Establishing that outer space would be “the province of all mankind” sounds very noble, but was in fact largely because both of the two main space powers felt that they could not control outer space and therefore wanted to lock their rival into a commitment of neutrality.

Could this agreement ever be changed? Could any country claim ownership of any part of the space?

There are some people who argue that the Treaty is no longer relevant in the contemporary space environment and that it should be majorly overhauled or even scrapped altogether. I personally do not agree with this position: although I appreciate that new regulations need to be overlaid onto the Treaty in order to reflect changes in space activity and technology I feel that the Treaty itself should still form the background for understanding how we approach space ownership. It has done this well for over half a century and that is not political capital that should be wasted, in my opinion.

Crewed trips to Mars are planned for the next few years. Is it possible that the first country to arrive on that planet could declare itself the owner of Mars?

Under the current regulatory framework in place for outer space, the first country to send humans to Mars could not declare ownership of that planet. There is a weak argument that if a private company were to send the mission an exception might be made since only countries are excluded from claiming ownership of celestial territory; however I think this flies in the face of the Treaty’s intention and would not be upheld legally (or in ‘the court of global public opinion’ for that matter). Furthermore, any commercial entity going to Mars would likely have at least some element of government backing and would be registered as having been launched by a particular country (and would therefore be subject to the ownership regulations that apply to countries). Having said that, by the time a crewed mission is actually successfully sent to Mars, perhaps there will have been more discussions (for example through the United Nations Committee on the Peaceful Uses of Outer Space) relating to a person’s nationality and territorial rights on future missions. Still I think it is more likely that a country would plant their flag on the surface of Mars, as has been done on the Moon, as a symbolic gesture rather than as a way to actually claim any sort of formal sovereignty. However it could be that if structures were built on Mars they could then be occupied under the sovereign authority of the country that has built those structures, although it would still not imply permanent occupation or ownership of the Martian territory beneath it.

What about the Moon?

Same as Mars! There are only two differentiating factors that I can think of: Firstly is that some people feel that the Apollo landing sites, for example, should be preserved as a UNESCO World Heritage site. And secondly, there is still a possibility of finding some form of microbial life on Mars, which might change the way the global community feels that planet should be treated in any sort of scenario of occupation.

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