This article is authored by Priankita Das, a Fourth Year Student of Law at Dr. Ram Manohar Lohiya National Law University.
DATE OF PUBLICATION- 2/4/2022
Introduction
Mankind has been a witness to a colossal number of technological advancements in the course of its evolution. From the first flight by the Wright Brothers in 1903 to the first successful orbital launch by the Soviet Union in 1957, numerous developments have taken place rapidly in a limited course of time. On account of such inventions, it is pertinent for the law to keep pace with the ever-changing dynamics of technological expansion. Against this backdrop, the present article seeks to question the legitimacy of lunar mining with a special emphasis on private players, a topic which has come to light as a consequence of the recent trend of governmental entities and private players exhibiting their intentions of taking the giant leap towards the outer space. In the course of questioning the legitimacy of such activities, the article also takes note of prerequisites present in the International Conventions for the activity of lunar mining and the domestic legislations that have been enacted by States that allow for such activities to be conducted. Lastly, it is concluded that lunar mining can indeed take place – notwithstanding the repercussions that might follow in the economic, social, and political spheres.
Drafting of the International Conventions
In the present day, five United Nations treaties form the foundation of international space law,; namely, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter “Outer Space Treaty”), the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the Convention on International Liability for Damage Caused by Space Objects, the Convention on Registration of Objects Launched into Outer Space, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter “Moon Agreement”). For the purposes of governing commercial activities in the outer space, only the Outer Space Treaty and the Moon Agreement are the dictating Conventions.
When these two Treaties were drafted, no regulations or guidelines were provided by the State Members on the aspect of private commercial activities in outer space. This can be attributed to the time period in which the Treaties were drafted, which was an era where there existed no feasibility or possibility of such activities being conducted. Further, Ricky J. Lee in his book titled “Law and Regulation of Commercial Mining of Minerals in Outer Space”[i] provides two possible reasons for the ambiguity present in the Outer Space Treaty and Moon Agreement provisions – firstly, at the time of the drafting of the Outer Space Treaty, only the United States and the Soviet Union were the space-faring countries, and due to the tensions of the Cold War, they naturally disagreed on many matters, one of which may have been the matter of commercial exploitation of lunar resources; secondly, the State Members who drafted the Treaties were of the belief that a general, expansive code would be beneficial in the long run in order to accommodate the evolving space technologies and ventures. Had restrictions been put in place on the activities in the outer space and there came a need for States and private entities to venture out for essential resources, it would have been difficult to conduct such activities without violating the principles of international space law.
In addition to the reasons stated above, perhaps it can be stated that due to their birth during the Cold War Era, the Treaties were drafted in consonance with a State-centric international system and did not envisage private entities conducting activities in the outer space as they were yet to enter the field of space law back then. However, with technological innovations in the field of space exploration brought about by both private scientific and commercial giants, the law has failed to keep up with the times.
Legitimacy of Commercial Lunar Mining
The Outer Space Treaty, which provides the basic framework for international space law, lacks any specific provisions that oust the activity of commercial activities from being conducted. It does contain certain positive law provisions under Article I that provide for the freedom of use and exploration of the outer space, in the interests of all mankind and without any discrimination towards other States. Many debates have emerged on the interpretation of the term ‘use’ provided under Article I of the Outer Space Treaty and whether it includes the activity of exploitation, i.e., lunar mining, within its ambit.
A. Inclusion of exploitation under the ambit of “use” under Article I of the Outer Space Treaty
The Vienna Convention on the Law of Treaties provides that treaty provisions must be read in their ordinary meaning (Article 31) and that the Preamble of a treaty can be used as a tool to aid in the interpretation of a treaty [Article 31(2)]. The Moon Agreement, which is almost a replica of the Outer Space Treaty, does mention the exploitation of resources on the lunar surface under Article 11(5) wherein it prohibits any such activity from taking place before the establishment of an international regime that shall govern these activities. Being adopted later, the Moon Agreement has modified the terms present in the Outer Space Treaty. Hence, with the use of the term ‘exploitation’ in the Moon Agreement, it can be construed that the term ‘use’ in the Outer Space Treaty envisages the activity of exploitation of lunar resources as well. Moreover, the principle of nulla poena sine lege, which means that there is no penalty without a law, implies that unless there is a prohibition by law on doing an act, it cannot be said to be illegal. Thus, the Outer Space Treaty, by way of ambiguity and lack of penalising provisions, allows the activity of moon mining to be conducted, whereas the Moon Agreement prohibits it in the absence of an international regime. However, if such a regime were established, then exploitation of resources could take place in compliance with the principles of international space law.
B. Necessity of an International Regime: Lack of a Binding Nature of the Moon Agreement
While debating the necessity of the establishment of an international regime to govern commercial activities in the outer space, it is pertinent to note that the Moon Agreement has been ratified or acceded to only by twenty-two State parties, the majority of whom are not spacefaring nations. For this reason, it is considered a failed Convention and its provisions do not bind the non-signatories of the Moon Agreement to it. Thus, the provision in the Moon Agreement that mandates the establishment of an international regime before the commencement of any exploitation activities is deemed to be inapplicable to most States. However, despite this, many spacefaring and non-spacefaring nations have come up with their own domestic legislations that provide for and govern the exploitation of lunar resources for commercial purposes, thus, giving domestic legitimacy to commercial activities that may be conducted in the outer space.
C. Domestic Legislations Encouraging Lunar Mining through its Allowance
The United States of America, in 2015, provided legitimacy to commercial activities by private entities on the lunar surface through the enactment of the U.S. Commercial Space Launch Competitiveness Act, 2015. It further provided that any American citizen engaged in such activity shall have the right to own, keep, use, and sell the spoils of such activities, thus, providing the citizens with proprietary rights as well. It must be noted that proprietary rights over any natural resources of the moon have been prohibited by Article 11(3) of the Moon Agreement. However, as previously stated, the binding nature of the Moon Agreement is questionable, and it is yet to be seen how States approach this conundrum if a dispute were to arise.
The same proprietary rights have also been provided by Luxembourg to its private mining companies through its Draft Law on the Exploration and Use of Space Resources that was adopted in 2017. It has further gone on to set up a $227 million fund as an incentive to mining companies to establish their offices and make the country the centre for space mining innovation. Thus, though there still exists a lack of an ‘international’ regime, States have come up with their own laws to encourage and enable the practice of commercial activities in the outer space.
Conclusion
Through the discussions above, it is evident that lunar mining has not been explicitly barred by the Outer Space Treaty and the Moon Agreement. The requirement under the Moon Agreement for an international regime has been attempted to be fulfilled by States through the enactment of domestic legislations that accord legitimacy to commercial activities in the outer space. This legitimacy has also been extended to activities conducted by private players.
Such an allowance may lead to concerns of proper appropriation and utilisation of resources, claims of sovereignty and territory over the surface of the moon, and many other things; however, at present, it is yet to be seen how the international community approaches the realm of lunar mining through a legal perspective.