Circumventing the Non-Appropriation Principle of International Space Law
About the authors: Priankita Das and Garima Khanna are fourth-year law students at Dr. Ram Manohar Lohiya National Law University, India.
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The unexplored bounds of outer space present many opportunities for ambitious and rapidly progressing space-faring nations and private entities to make their mark in outer space. However, the legal doctrine is still being developed and is not consistent with the transition from exploration to exploitation. This blog questions whether space-faring nations will ever successfully exploit resources in outer space and if they do, who gets to possess the legal ownership over them. The current Conventions are clouded by ambiguity on the issues of appropriation of resources extracted from the moon and other celestial bodies, but with ambitious non-governmental organizations laying down stepping stones for development in outer space, it is essential to clear the air pertaining to these complex matters. At a cursory glance, it may seem like these resources shall be acquired on a first-come-first-serve basis, but the consequence of that approach is deep-rooted in issues arising out of ignorance of basic customary international law. The most pressing concern is that the rights of developing nations might be overlooked, as their resources to reach outer space remain limited due to technological or economical incapability. An unequal allocation of resources may lead to territorial conflicts defeating the object and purpose of the Space Conventions for peaceful use of outer space.
II. PRINCIPLE OF NON-APPROPRIATION IN SPACE LAW
One of the most fundamental principles of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (hereinafter “Outer Space Treaty”) and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter “Moon Agreement”) is the principle of non-appropriation, which essentially means that no object can become the property of any state or citizen. This principle aims to guarantee peace among state parties and prevent any occurrences of private disputes arising out of proprietary rights over the lunar surface. Its purpose is not to prohibit the use of lunar resources, but rather to provide free access to all state parties on a non-discriminatory basis. This indicates that the drafters of the Outer Space Treaty acknowledge the perks of giving access to mankind for purposes of exploring the unexplored bounds of space and simultaneously were aware of the colossal harm that could be brought to extra-terrestrial matter present on celestial bodies. Both the Outer Space Treaty and the Moon Agreement have provisions enforcing this specific principle. The non-appropriation principle creates certain obstacles for private entities that seek to gain monetary profits out of moon mining; however, there do exist certain loopholes that can be used by private commercial entities in order to circumvent this principle without the violation of any provision of international or domestic law.
III. RESTRICTION OF NATIONAL APPROPRIATION OF THE LUNAR RESOURCES
The Outer Space Treaty [Article II] and Moon Agreement [Article 11(2)] state that the surface of the moon or any part thereof shall not be subject to ‘national appropriation’ by a claim of sovereignty, means of use and occupation, or by any other means. It is pertinent to note that the provisions only prohibit ‘national’ appropriation and are silent on the subject of appropriation by private entities. However, Article VI of the Outer Space Treaty categorically states that any activity conducted by a non-governmental entity in outer space shall come under the purview of the State’s jurisdiction and the State shall be responsible for the actions of the organization. Furthermore, Responsibility of States for Internationally Wrongful Acts also recognizes any person or entity as Organs of State under Article IV.
Similarly, in 2004, the International Institute of Space Law (hereinafter “IISL”) stated that territorial claims, whether by a national or private entity, are prohibited by the Outer Space Treaty. The IISL drew this conclusion from Article VI of the Outer Space Treaty, which states that the responsibility of any and all activities, including activities by non-governmental entities, shall be of the State parties. Therefore, by an extension of this provision, the non-appropriation principle is binding upon private commercial players as well, and thus, they cannot appropriate the resources available on the lunar surface.
IV. APPROPRIATION OF LUNAR RESOURCES ‘IN PLACE’
Despite the extended application of the non-appropriation principle on private entities, there exists another loophole in the Moon Agreement that may be utilized to circumvent the non-appropriation principle. Article 11(3) of the Moon Agreement states that no proprietary rights can be created over any natural resources ‘in place’ and that the placement of any structures, vehicles, or personnel over the surface of the moon shall not give rise to the right of ownership. Emphasis must be supplied to the term ‘in place’ or in situ, which implies that the prohibition on the creation of property resources is inapplicable to the resources which have been extracted from the surface of the moon. Any resources which are ‘out-of-place’, i.e., removed from the surface by the personnel or equipment, are not under the protection of the Moon Agreement or Outer Space Treaty. Therefore, if any mining company, whether private or governmental, intends to extract and take over the ownership of lunar resources, it would not be in violation of international space law. The United States of America has also based its domestic space mining legislation on this interpretation of the Conventions.
Moreover, with the application of the nulla poena sine lege principle, i.e., one cannot be punished for doing something that is not prohibited by law, it implicitly allows private entities to appropriate resources available on the lunar surface. Thus, private commercial entities have a way out of compliance with the non-appropriation principle of the Outer Space Treaty and Moon Agreement. However, such allowance for private entities would defeat the very purpose of the Outer Space Treaty and the non-appropriation principle.
Despite the noble attempt of the Outer Space Treaty and Moon Agreement to proscribe the creation of proprietary rights in outer space, the drafters of the Conventions failed to take into account the loophole provided by the wording of Article 11(3) of the Moon Agreement that allows such creation over resources ‘in place’ or in situ. This loophole may allow private players and government entities to misuse the freedom allowed by international space law and go forward in placing private and sovereign claims over lunar resources to the detriment of other private and national entities. Such circumvention will result in the absolute defeat of the res communis principle, i.e., the common heritage of mankind, that is fundamental to international space law. Thus, it is recommended that State Members take note of this loophole at the earliest, and accordingly devise a solution that would eliminate the misuse of this provision.