The outer space does not recognize the sovereignty of nations. The Outer Space Treaty (OST), endorsed by the United Nations in 1967, forthrightly says that outer space, including the moon and other celestial bodies, must be used “for the benefit of and interest of all.” It is determined that outer space is the common area of humankind and any attempt to grab it cause a grave injury to the principle of inclusive development of humankind. This is in line with the law on the high seas which too are also the “common heritage of all humankind”. Any nation having technological expertise should not be able to monopolize it.
OUTER SPACE HAS CHANGED
At the time when OST was enacted, cold war had engrossed in Cold War. The superpowers- the U.S. and the U.S.S.R- did not want to lose allies, most of whom were the underdeveloped nations, just for a far-fetched dream of space exploration and occupation. The dream, however, does not seem fat-fetched now. With the advancements in technology, not only the states but the private players have started demanding an open competition in space. Space exploration is no more a want of a few enthusiastic scientists but has become a common need and a future resort for humankind. While the developing counties argue that OST talks about sharing of benefits made through space exploration, developed nations deny any such obligation. The latter have argued that OST permits them to explore, use and exploit common resources without claiming an exclusive jurisdiction over them.
Is Wealth-Sharing Feasible?
While developing countries interpret article II of the OST to espouse for wealth sharing as well, developed nations have found a good case to negate it. This seems like incentivizing someone who didn’t put any efforts in performing a task. Space faring nation risk their money, energy, and resources on a mission and it is undesirable on the ground of justice, equity and good conscience to deny them what they earned.
PRIVATE PARTICIPATION
The involvement of commercial entities in Outer Space exploration is continuously increasing. Apart from economic gains for corporate, mining of minerals on moon and asteroids help filing for earth’s diminishing resources. It is believed that human settlement on moon can save earth from the climate change and allied catastrophes. While some argue that it is possible for the private entities to occupy space as Article II OST is silent on private participation, it is rather absurd in law to allow private entities break their own countries’ international obligations. Even if Article VI allows for a participation of non-governmental entities, they can only do it in the interest of all countries, irrespective of their degree of scientific or economic development. This notion, of course, discourages private entities who definitely shall be looking for wealth and incentives.
STRIKING SHIFT IN NATIONS’ VIEWPOINT
The U.S.A. in 2015 enacted the Commercial Space Launch Competitiveness Act. This law allows the American commercial companies to explore “space resources”. It was followed by a similar legislation by Luxembourg. Both nations argued that there is no applicability over public companies’ participation and therefore no question of State or its sovereignty arises. In July, 2020, President Trump signed an executive order authorizing public-private partnership in exploration in outer space. This dramatic shift in the U.S. outlook of outer space augments the conundrum surrounding the eventual fate of the OST. It can argue that resource extraction is not same as occupation or sovereignty. But, this does not seem convincing as mining may take years and the other nations are, for the time being, excluded from accessing such resources. These legislations further exacerbate the situation rather than ameliorating it. Furthermore if they are allowed, it is akin to let private companies define and regulate the international law in outer space.
THE WAY FORWARD
It is acceptable at this juncture that commercialised outer space exploration cannot be halted by obsolete international regulations. To clarify its approach, NASA has recently in “Artemis Accords” espoused for a partnership with “like-minded countries” instead of having international endorsement of the U.N. This move is criticised by Russia and China alike who see it another attempt by the U.S. to eclipse the U.N. to further its ‘selfish’ interests. Undoubtedly, this is an undesirable development. The results of Artemis Accords are yet to be seen but a reasonable prospection suggests a number of conflicts between the nation-states. The commercialisation of outer space does not appear to be a sensible alternative to the OST. Neither does it repairs the defect persisting in international law. This showcases the high-hand approach of developed countries and their impatience to control the outer space.
Presently, it is nobody’s case to revive the OST or apply it in its current form. What, however, could be done is to present a fresh proposal at the U.N. acknowledging the changing contours of space exploration. Whatever the draft may contain, it should be endorsed by an international body having the confidence of a majority of the countries. It is suggested that the Hague International Space Resources Governance Working Group can play a crucial role in the process. A few regulatory guidelines, even if non-binding, can be laid down as they eventually may form the premise of the customary international law. The unregulated space race will not only facilitate a conflict between States but also harm the peace in the outer space. It is high time the U.N. revisits the outer space governance model to lift the blanket prohibition on sovereignty and lays down rules for an inclusive outer space.