Laura Movilla Pateiro: Who owns the natural resources of the space?

Veteran and new space powers, as well as private companies, have turned their attention to space resources, especially minerals. Without going any further, companies like the American startup AstroForge are betting on space mining on asteroids. And within the framework of the Artemis Program, led by NASA, they propose exploiting these resources in space itself to obtain fuel and raw materials with which to build structures.

To legitimize their aspirations, legal developments are taking place at the national and international level that seem to contradict the principles on which Space Law has been based until now.

Beyond their legal regulation, these activities also pose important social, economic and environmental challenges, including the distribution of benefits, the role of the private sector, their effects on the global economy, the sustainability of space activities or the protection of the environment. space and terrestrial.

Has the Space Treaty become obsolete?

The Space Treaty of 1967 was the first binding international legal instrument of space law and established its basic principles. It was negotiated in the United Nations Commission on the Peaceful Uses of Outer Space (COPUOS), the forum in which space law has historically developed. It has a large number of State parties, including the main space powers.

With it, space was declared open to exploration, use and scientific research by all States, without discrimination. These activities must also be carried out for the benefit and interest of all countries, regardless of their degree of economic and scientific development.

At the same time, in accordance with its article II, the space may not be the object of national appropriation due to a claim of sovereignty, use or occupation, or in any other way.

National laws allowing the appropriation of space resources

The wording of Article II of the Space Treaty appears to leave little room for interpretation. However, in recent years, several States have adopted national laws that legitimize the exploitation of space resources and allow their appropriation.

The US Space Act, adopted in 2015 under the presidency of Barak Obama, is a good example. It grants to any US citizen the right to any space resource that he obtains, including its possession, ownership, transportation, use and sale. Try to clarify that by doing so you are not asserting sovereignty, sovereign or exclusive rights, jurisdiction or ownership over any celestial body. A similar Luxembourg law from 2017 grants similar rights to companies based in that country.

In October 2020, eight States, led by the United States, signed the Artemis Accords. Twenty more states have joined since then, including Spain. It is not exactly an international treaty and, therefore, is not technically binding. However, they foresee the exploitation of space resources in support of the space exploration activities of the Artemis Program led by NASA.

They attempt to justify its compatibility with the Space Treaty by indicating that the extraction of space resources would not inherently constitute a national appropriation under its Article II.

Along the same lines, an Executive Order adopted by former President Donald Trump in April 2020 already justified the right to explore, recover and use space resources in the possibility they provide for exploration, permanent stay and successful scientific research on the Moon. and the future mission to Mars.

The aforementioned national laws, as well as the Artemis Agreements, seek to legitimize a controversial interpretation of Article II of the Space Treaty that distinguishes the appropriation or declaration of sovereignty over celestial bodies – which would be prohibited – from that of their natural resources – which would be permitted. and encompassed by the freedom of use and exploration of space.

This interpretation contradicts for many the spirit of the Space Treaty and others, such as the Moon Treaty of 1979. The latter contains a formulation of the principle of non-appropriation similar to that of the Space Treaty and expressly declared the Moon and its resources natural common heritage of humanity.

The States also committed to establishing an international regime for the exploitation of these resources. But the Moon Treaty has only 17 state parties, which do not include the major space powers.

The need for a global and inclusive debate

More recent – ​​although non-binding – legal developments, such as the “Space2030” Agenda, adopted by the United Nations General Assembly in 2021, aim to guide space activities towards greater sustainability and international cooperation. Possible models of legal rules applicable to the exploration, exploitation and use of space resources are also being studied within the framework of COPUOS.

We hope that these initiatives will help channel the exploitation of space resources in a multilateral and inclusive manner so that it effectively benefits everyone.

This article has been published in ‘The conversation‘.

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