The Collapsing Core of International Space Law: A View from the South
By Sharan Bhavnani
On April 6, President Trump issued an Executive Order (EO) affirming the United States’ position on the commercialization of space resources and partnering with private corporations like Blue Origin and SpaceX. Propelled by this, NASA selected three private entities to develop lunar landers, setting the stage for mining. This move not only violates the framework of International Space Law (ISL), but also the egalitarian philosophy underlying the Outer Space Treaty, 1967 (OST), making it a cause for concern for the Global South.
In 2017, U.S. Space Policy Directive-1 furthered the policy objective of “partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.” Taking this a step ahead, the EO states that Americans “should have the right to engage in commercial exploration, recovery, and use of resources….” The mining of resources without a legal framework would be in violation of international law for two reasons. In response to USA’s first attempt at commercialization, many States including Russia, Belgium and Brazil opposed the carte blanche that USA claimed for itself and its private entities. This opposition has reinforced the obligation in Article II of the OST to not “appropriate” outer space “through any means”. In fact, the travaux préparatoires also confirm that the freedom to use outer space would be redundant if done to the exclusion of any other state. Without any legal architecture, mining will exclude others from using the same resource. Thus, violating the OST.
The EO also rejects viewing outer space as “global commons.” Broadly, a “commons” is a domain over which all states have an equally shared interest. Its improper use would hamper the interest of others, and is thus governed by an international framework. Though unmentioned in the OST, outer space has been widely viewed as a “global commons.” The treaty grants the right to explore and use outer space to all countries “without discrimination of any kind, on a basis of equality” and requires activities to be for “the common interest of all mankind.” This equality is only achievable if each state respects the rights of others. To that effect, the OST also obligates states to act “in the interest of…promoting international cooperation and understanding” and with “due regard to the corresponding interests of all other States Parties to the Treaty.” The intent of such language is not only to signify the shared global nature of outer space, but also the equality of access of states in exercising its rights. In fact, equality (and absence of discrimination) is also seen in the fact the UN space organization, UNCOPUOS, which votes with consensus, proving that small nations have equal decision-making power with large nations.
Apart from equality, the OST also contains the seeds of equity. Article I states that “exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development.” Brazil, a developing nation, played an effective role in having such a value enshrined as an operative clause of the treaty, keeping in mind the natural disadvantage of the Global South. Over time, the value of equity became an integral part of ISL. In 1996, the UNGA adopted the Benefits Declaration to extend equitable consideration toward the “needs of developing nations.” In fact, at the UNGA (IV Committee) Session in 2019, Indonesia and EU reinforced the principle of equitable access to space.
Thus, the notions of equality and equity in the access, exploration and use of outer space have always been a part of ISL, and have expanded over the years. Without these notions, the world could observe the tragedy of the commons where developed nations capitalize on early access to the exclusion of other nations – causing resource exploitation and debris pollution.
Though countries like the U.S. and Luxembourg view privatization as a panacea to earth’s resource depletion, developing nations must oppose this view. States must appreciate that the values of equality and equity are meant to provide “a strong safeguard for the interests of those states which have, at the present time, little or no active space program of their own,” as noted by Justice Arthur Goldberg, former U.S. ambassador to the UN. This raises the question, how should states identify, appreciate and perpetuate these values in the law?
Third World Approaches to International Law (TWAIL) could provide an answer. It is a set of approaches from the perspective of Global South toward the North, and offers a critique to an increasingly globalized and neoliberal framework. If unregulated mining begins, what could the future hold for the Global South? One TWAIL approach of using political and economic history proffers a glimpse of what may be.
With the Global North’s attempt to privatize, words such as “colony” and “extraction of resources” have become a part of space-related lexicon. However, they evoke strong anti-imperialist sentiment. More importantly, they reflect the (possible) intentions of the Global North. William Dalrymple, a notable scholar of Indian colonial history, writes that “dangerously unregulated” private entities like the British East India Company only chased profits and shareholders’ interests. It had “no stake in the just governance of the region, or its long term well-being”; thereby entrapping southern nations in South Asia with debt and deprivation of opportunities. This offers a warning against changing inherent egalitarian nature of the OST which prevents unregulated mining. Just like colonized nations, outer space could become a “province of the mighty,” once again excluding the Global South from its due.
Sharan is an alumnus of the National Law School of India University, Bangalore (NLSIU). He was adjudged the winner of the XXVI Manfred Lachs International Space Law Moot Court Competition in 2017, and elected as the inaugural President of NLISUs Council for International Relations and International Law (CIRIL). He also served as the Editor-in-Chief of NLSIUs flagship law journal – the National Law School of India Review in 2019. His LinkedIn can be accessed here.
Twitter: @sharan_bhavnani
“NEOWISE: Back to Hunt More Asteroids (Artist Concept)” is an image from NASA, and is under the public domain.
