JURIST Guest Columnist Megha Kamboj, a second-year law student at Maharashtra National Law University in Mumbai, India, discusses space law and the increasing competition over outer space resources...
While the world was grappling with the COVID-19 pandemic, US President Donald Trump signed an executive order allowing Americans to have the right to engage in commercial exploration, recovery, and use of resources in outer space. This move by the US government has certainly marked a turning point in the development of international space law. It is the first time a nation has made an explicit statement that it doesn’t view space as a “global commons.” Space powers generally have not been comfortable with viewing space as a common heritage of mankind. With the increase in technology, commercial and political inclination towards space mining is growing. However, is outer space once again a victim of power politics? This article shall focus on the loopholes in existing space law treaties, the increasing competition between the space powers, and the reasons that space mining is attractive to the space powers. Finally, it shall highlight the potential risks of such power competition and the need for a common global governance framework.
The Space Law Treaties
The new executive order builds on the U.S. Commercial Space Launch Competitiveness Act and Space Directive-1. While some reports and experts say that this move has put an end to the decades-long debate created by the 1967 Outer Space Treaty, it has also given birth to other concerns, such as the balance of power and economic gains of the international community.
The Outer Space Treaty has 109 countries as a party to it, including all the major space powers such as the US, UK, and Russia. It is based on the principle of res communis and is considered as the founding pillar of international space law. The language of the treaty has created ambiguity in terms of its implication. It prohibits nations from claiming sovereignty over outer space, including the moon and other celestial bodies, but it does not recognize the private appropriation of space. To cover up the loopholes in the Outer Space Treaty, the Moon Agreement was drafted with an aim to view the moon and its natural resources as a common heritage of mankind. Any exploitation of its resources should be governed by an international regime. Even after so many years, only 18 countries are party to the Moon Treaty. This does not include the major space powers, except India.
The Space Race
This order has received mixed views from various nations. The deputy director-general on international cooperation at Russia’s Space Agency, while criticizing the order, referred it as “colonialism.” As per the statements issued by him,
“Attempts to expropriate outer space and aggressive plans to actually seize territories of other planets hardly set the countries [on course for] fruitful cooperation. There have already been examples in history when one country decided to start seizing territories in its interest—everyone remembers what came of it.”
While Russia criticized the order, it is planning to extract helium from the moon and establish a permanent lunar base by approximately 2025.
The race to explore and exploit outer space resources has increased pace. China claims it will start asteroid exploration by 2025. Luxembourg has adopted a legal framework, on similar lines with the US, to protect property rights over outer space resources. It has also announced that it will mine asteroids and other near-Earth objects in search of rare minerals. Private companies and start-ups like Planetary Resources, Deep Space Industries, ispace, SpaceX, and Kleos Space have also jumped on the bandwagon.
Why Space Mining?
With the advancement in space technology, the concept of space mining is gaining popularity among nations and private players. As resources are depleting on earth, countries are shifting their focus to recovering them from outer space. The main objective of space mining is to supplement resources that are rare and declining on the earth. The moon, Mars, and the asteroid belt in our solar system have an abundance of precious metals, such as iron, nickel, cobalt, copper, tungsten, niobium, and even gold.
The economic edge that space mining offers to various countries and commercial players is very much evident. According to Reuters, a 30-meter-long asteroid can hold around $25 to $50 billion worth of platinum. According to NASA, the asteroid named 16 Psyche is so rich in heavy metals that its estimated worth is $10,000 quadrillion. The platinum group metals are necessary for electronics manufacturing. Metals such as iron, nickel, cobalt, and copper are important raw materials for space factories. In outer space, water in its other forms is available in an ample amount. The water available will not only support human life outside earth, but it also can serve as rocket fuel by breaking down oxygen and hydrogen from the available water. Hence, instead of carrying fuel to space, such asteroids can serve as outer space “fuel stations” for various space missions, cutting the cost involved in such projects. Also, the availability of Helium-3 on the moon provides a clean source of energy. Thus, such opportunities involving a high rate of return available in outer space lure various nations and private companies.
The question of who owns outer space has become a controversial topic, with countries and private actors looking to seek profits from outer space. The US government, not viewing outer space as “global common,” has made a bold statement against the concept of “space as a heritage of mankind.” This move of the US government has now opened the gates for other nations to draft domestic space laws on similar lines. With the passing of this order, the real space race has begun. It is believed that the concept of res communis, in relation to international space law, limits exploration and innovation.
Such moves by various space powers come with a cost. The fact that companies only based on domestic laws can exploit resources from outer space will create a huge economic disparity between nations. This will lead to a change in economic and power dynamics in the international domain. In the absence of proper regulatory framework, the risk of weaponization of outer space also increases. Outer space needs to be protected from capitalist greed. As the resources available in outer space are exhaustible, it is important to explore outer space with a sustainable development approach. Also, with an increase in space exploration projects, the problem of space junk increases. Hence, it becomes important to carry out activities such as mining in a very systematic and ethical manner, to reduce over-exploitation of the outer space.
It is the joint responsibility of every nation to minimize the competition of the space race and to improve the balance of power. There is an urgent need for a common global governance mechanism for the exploitation and usage of resources from outer space. An approach that is transparent and collaborative is imperative. It has become the need of the hour to adopt methods for peaceful exploitation that will benefit humankind and not turn space into a battlefield. The principle of “cooperation and mutual assistance,” as laid down by the Outer Space Treaty, should be strongly upheld by all the nations – especially the major superpowers.
Megha Kamboj is a second-year law student at Maharashtra National Law University in Mumbai, India. Her areas of interest include international law and space law.
Suggested citation: Megha Kamboj, Outer Space: A Victim of Power Competition?, JURIST – Student Commentary, June 1, 2020, https://www.jurist.org/commentary/2020/06/
This article was prepared for publication by Cassandra Maas, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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