When it comes to happenings related to space, few are as tense, exciting, and risky as the landing of NASA’s Perseverance rover on Mars on 18 February 2021.
Not only does the landing of NASA’s spacecraft on Jezero Crater, named after a small municipality in Bosnia and Herzegovina, between the Una, Sava, and Neretva valleys, open the possibility for scientists to find out if there is life on the Red Planet, but it also opens the door for this small municipality to be heard outside the Balkans.
But how does the law work in space?
Today, countries and companies hope to mine asteroids from Mars and the Moon, bringing rare minerals back to Earth for examination. Others hope to establish the space colonies that would survive by mining and extracting oxygen and water from celestial rocks. The question is, however, how to fairly determine „Who owns the mineral rights?”, “Who owns the land”?, and “Who owns the asteroids?”.
The legal and governance-related challenge concerning the outer space is that the core legal frameworks for space law were all agreed upon during the Cold War. The first international effort to resolve the ownership of celestial real estate materialized in 1967, when the United Nations initiated the Outer Space Treaty (officially known as the Treaty on Principles for the Activities of States to Explore and Use Outer Space, including the Moon and Other Celestial Bodies). The Treaty designated space as the “province of all mankind “, stating that no nation can assert sovereignty over the Moon, although it failed to stipulate clearly that individuals cannot. It prohibits any country from claiming space territory. In article eight of the agreement, for example, nations agree to “retain jurisdiction and control” over any object or personnel they launch into space. The Treaty was ratified by 109 countries, but the problem lays in the possibility of any country withdrawing its ratification with a year’s notice.
However, the reality of the 21st century space exploration is very different from when the Treaty was first drawn up in the 1960s, as the space policy authority. Topics such as tourism, mining, colonization, and celestial ownership have legal, ethical, and philosophical implications that diversely capture the attention of politicians, lawyers, academics, and the media. However, at the core of them all is the changing profile of those participating in space activities. Once primarily the domain of an elite number of states, space is today accessible to many countries and a range of non-state entities, for instance, the SpaceX company owned by Elon Musk.
In 1979, the United Nations proposed the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”, i.e. the so-called Moon Treaty. The new agreement advances the original Outer Space Treaty by adding new articles, such as:
• Banning any military use of moons and celestial bodies, including weapons testing and military bases;
• Banning all exploration and usage of the Moon and other celestial bodies without the approval or benefit of other states;
• Declaring that the Moon and its natural resources are the “common heritage of mankind”, and that no state or organization can claim to “own” the resources available on the Moon.
The Treaty’s goal is to transfer the control of the exploration and use of the Moon and other celestial bodies to the international community. Without the approval or benefit of all countries, no country may use the Moon or its resources. Unfortunately, the ratification of the Treaty has failed with only 18 countries having ratified it.
In light of the most recent events, there has been controversy over whether the existing outer space legal system is strong enough to meet the challenges of the 21st century, or whether an alternative framework is needed. Although many international public space regulations, principles, and treaties face certain challenges, as new public and private entities become more active and determined, outer space is particularly subject to harsh competition.
One of the most important principles of international law applicable to outer space is “common heritage”. The principle of common heritage was first promoted in the 1960s and applied to the deep seabed. There are similar terms in the Outer Space Treaty and the Moon Agreement. Common heritage principles include non-occupation of resources, benefit sharing, and related principles such as freedom of scientific research, freedom of access, and environmental management rights.
Another key issue of space law is the divergence between the civil exploration reflected in the Artemis Agreement (principles of cooperation in the civil exploration and use of the Moon, Mars, comets, and asteroids for peaceful purposes, which is grounded in the Outer Space Treaty of 1967) and the use of outer space for military activities. More work needs to be done in both areas – first to clarify whether the previously established treaties are suitable for expanding civilian activities, including the application of space mining according to the common heritage principles; second, to define the level of acceptable militarization of outer space, in an area traditionally considered reserved for peaceful purposes.
Until the first space laws are adopted, it is still not (completely) illegal to purchase a piece of paper that says that you are the owner of a plot on Mars or that a star has been named after you for only a few hundred euros, but do not forget that the stars themselves are not for sale.
One day we might encounter other intelligent civilizations in space, and we should wonder how they would like our laws and “title deeds”.
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