Bob Behnken and Doug Hurley, NASA astronauts
On Jun 1st 2020, Bob Behnken and Doug Hurley, NASA astronauts aboard the first commercial Space X Crew Dragon spacecraft with human beings successfully docked in International Space Station.[1] In 2017, SpaceX revealed its intent to land astronauts on Mars by 2026.[2] On the other hand, the European Space Agency in 2018 outlined its proposals to exploit Helium 3 available in abundance in the moon green energy on earth[3], with NASA already ahead in its plans to capture an asteroid.[4] Notably, a perfunctory glance of the provisions of Article II of the Outer Space Treaty 1967[5] denote that the preceding undertakings constitute gross violations of the express prohibitions of the national appropriation of the outer space and its celestial bodies. These flagrant violations undoubtedly cast doubts on the relevance of the non-appropriation principle, hence demand an assessment of its validity and effectiveness. Arguably, a critical review of the non-appropriation article and its fundamental objective reveals its ambiguity and malleability, which amidst societal change, demean its practical effectiveness in contemplation of the future technological advancements, commercial interests and national insecurity.
The inherent ambiguity of the provisions of the incorporated Article II upon critical assessments, suggest to its lower practicality, despite its noble objectives. Notably, the incorporation of the non-incorporation was arguably the prevention of international conflict and tensions, hence preserve international peace. The interest in international peace was deemed necessary in the contemplation that any of the two conflicting countries, the USA and the USSR, would employ the surface of the celestial bodies to launch missiles and other weapons against their enemies, hence the need of a guarantee.[6] However, in light of its modern application in the 21st century with the negation of the fears of mutual destruction, the wording of the provisions reveal the shortsightedness of the drafters in deficit of appreciation of the consequences of the provisions in the future. Notably, the provision, although prima facie unambiguous, is compounded with colossal uncertainties, namely; the eligibility and validity of individual appropriations, the composition of outer space, and the problematic context of appropriation.
Arguably, the ambiguity on the eligibility and validity of individual appropriations forms the basis for the justification of the violations of the non-appropriation principle. Notably, the article in its entirety provides that “Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation, by means of appropriation, or by any other means.”[7] The lack of the express prohibition on the activities of private firms forms the basis that the limitation is solely on the declaration of national sovereignty of the outer space, therefore permitting individuals to exploit it legally. Such individual exploitation and appropriation would arguably base on the condition that the individual would strictly be acting on his own volition or behalf of the corporation and not the state.[8] This, undoubtedly, indicates a lack of foresight by the drafters.
Understandably, the lack of foresight on the part of the drafters got based on the erroneous assumption that states would perpetually be the only space actors.[9] This is in light of the humongous expenses required to be raised by the state to engage in space exploration. Additionally, the sole objective of the principle was the preservation of international peace. Notably, the presumptively erroneous construction of the provisions of the article is further justified that the granting of the private property rights, even though derive validity and enforceability from the government, do not necessarily constitute an appropriation. The government, in its exercise of the granting of private rights, would not be vesting its sovereignty on the outer space since it would only be regulating the practices of citizens in its jurisdiction.
It is in light of this extent of national appropriation, and the argument that the “appropriation of extracted resources is a permissible exception to the non-appropriation clause of Article II.”[10] This arguably led to the declaration of the allowance of legal entitlement and private interests in space materials by the U.S. Government in the law in section 51 of the U.S. Code, exacerbated in the Spurring Private Aerospace Competitiveness and Entrepreneurship Act in 2015. The Act provides that “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space.”[11] The entitlement would include not only the exclusive right of use of the resource but also the right to sell. Such interpretation of the article II enshrined in statutory law provides the corporations with the assurance of reaping benefits from space exploration, at least within U.S. jurisdiction.
The preceding legislation and interpretation of the non-appropriation principle evoked reactions from other potential space actors. For instance, on Jul 20th 2017, Luxembourg enacted the On the Exploration and Utilization of Space Resources Act, whose article I expressly permitting the appropriation of space resources, while article III grants private entities the authorization for commercial space exploration.[12] Such certainty in the ownership over the space materials is courtesy of the ambiguity on national appropriation and lack of foresight by the drafters constitutes not only the violation of the principle but also demeans its practical effectiveness. Notably, the ambiguity on the extent of national appropriation gets further compounded by the lack of a concise definition of the composition of the outer space.
The uncertainties in the composition of outer space undoubtedly constitute another basis for the watering down of the practical effectiveness of the no appropriation principle. Notably, there exists a deficiency in the concise definition of the space materials and a further problematic identification of the extent of space in relation to the atmosphere. Such deficiencies, especially in light of technological advancements lead to the violation of the principle, for instance, the intent of NASA to capture an asteroid. The question on the validity of NASA intent to bring the asteroid on earth, and its consequent ownership and exploitation, is undoubtedly a violation as it is a form of appropriation.
Notably, the preceding arguments for the appropriation of the space materials, celestial bodies and outer space, are primarily motivated by the societal changes. Societal changes and needs form the basis of the direction of the course of the movement of the government, not vice versa.[13] In so far as the change in societal needs are concerned, the non-appropriation principle in article II is invalid as per the Vienna Convention on the Law of Treaties. The convention provides that a treaty may be non-binding in light of the fundamental change of the relevant circumstances pertaining to its conceptualization.[14] The differences in the modern context of the application of international space, contrasted with the objectives and purposes during the conceptualization of the principle, therefore suggest that states may not be bound to it. The fundamental changes in the society include the interests in the commercialization of the outer space, the technological advancements and the interests in national defence.
Interests in the commercialization of outer space, in contemplation of the abundance of valued resources, is the prime justification for the clamours for the removal of the non-appropriation principle. For instance, the prevalence of iron in an asteroid triple the rate of what is available of earth provokes high estimations of financial worth. Such interest, therefore, promotes the clamours and societal need for the amendment of the clause, or its erroneous interpretation. Such commercialization gets enabled by technological advancements in various industries such as communication and security.
The interests of defence against attack by enemies constitute a considerable concern, especially presently in light of the advent of the internet, and the heavy reliance on space for communications. Such interests are sparked by the spike in space arms, as exacertbated in 2007 when China showed its capability to attack to and from space through launching a missile to destroy an obsolete satellite.[15] Notably, the U.N. provides for states to take measures in self defence for peaceful undertakings[16] hence formed the basis of the USA provision on the exclusion of its space to aliens hostile to its interests in the 2006 Space policy. This, undoubtedly, waters down the practical effectiveness of the non-appropriation principle.
The preceding establish that indeed the future practical effectiveness of the non-appropriation clause is highly doubtful, in light of its current ambiguities that subject it to variant interpretations. The change in the societal needs such as national defence interests, propelled by technological advancements, indeed rebuts the essence of the provision. Therefore, it is recommendable that the current legislative framework of the prohibitory regulation demands its overhaul. The United Nations should instead constitute a committee for the equitable and efficient appropriation of the space materials through applicable means, for instance, leasing.
[1] Christina Davenport and Jacob Bogage. ‘SpaceX Nasa Docking International Station.’ (Washington, 2019) <https://www.washingtonpost.com/technology/2020/05/31/spacex-nasa-docking-international-space-station/>accessed Jul 2nd, 2020.
[2] Neel V. Patel, Elon Musk Unveils SpaceX’s Timeline for Sending People to Mars: Will We
See Humans on Mars by 2026?, INVERSE (Jun 19th, 2017), https://www.inverse.com/article/33146-elon musk-SpaceX-timeline-mars-mission-new-space
[3] EUR, SPACE AGENCY. ‘Helium-3 Mining on the Lunar Surface, <http://www.esa.int/
Our_Activities/Preparing_for_the_Future/Space_for_Earth/Energy/Helium-3_mining_on_the_lunar_Surface> accessed 2nd June 2020
[4] NASA.gov. ‘What is a NASA Asteroid Redirect Mission?’ (NASA 2019)<https://www.nasa.gov/content/what-is-nasa-s-asteroid-redirect-mission#:~:text=NASA%20will%20choose%20an%20asteroid,it%20will%20not%20hit%20Earth.> accessed Jun 2nd, 2019.
[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space 1967
[6] Adam G. Quinn, ‘The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space’ (2008)17 MINN. J. INT’L L. 475.
[7] Zachos A. Paliouras, The Non-Appropriation Principle: TheGrundnorm of International Space Law (2014) INTLL, pg 37.
[8] Fabio Tronchetti, ‘The Non-Appropriation Principle Under Attack: Using Article Ii Of The Outer Space Treaty In Its Defence’ (2001) INTTL, para 3
[9] Virgiliu Pop, ‘Appropriation in Outer Space: The Relationship Between Land and
Ownership and Sovereignty on the Celestial Bodies’, (2000) 16 SPACE POL’Y 275, 276
[10] Jinyuan Su, ‘Legality Of Unilateral Exploitation Of Space Resources Under International Law’ (2017) ICLQ vol 66, pp 97
[11] Spurring Private Aerospace Competitiveness and Entrepreneurship Act 2015.
[12] Jeff Foust, ‘Luxembourg Adopts Space Resources Law’, (SPACE NEWS, Jul 2017),
http://spacenews.com/luxembourg-adopts-space-resources-law>accessed Jun 2nd, 2020.
[13] Jinyuan Su, ‘Legality Of Unilateral Exploitation Of Space Resources Under International Law’ (2017) ICLQ vol 66, pp 99.
[14] Vienna Convention on the Law of Treaties 1969
[15] Cestmir Cepelka, ‘The Application of General International Law in Outer Space’ (1970) JALC 36.1.3
[16] David E. Sanger & Joseph Kahn, ‘U.S. Tries to Interpret China’s Silence Over Test’ (N.Y. Times, Jan 22nd 2007) A7.