RESOURCE APPORTIONING IN OUTER SPACE: EXAMINING THE OPERATION AND CONTINUING VIABILITY OF THE FUNDAMENTAL PRINCIPLES
1.0 INTRODUCTION
The question of resource sharing is one as ancient as human civilization itself. In nearly all spheres of human endeavors, different rules have evolved both formally and informally to govern the apportioning of various resources between individuals, organizations and states. This is no different in Outer Space. Hence, notwithstanding the factor of effort exerted, there are fundamental principles that guide the attainment and exploitation of resources in outer space. These are the principles of ‘use for benefit of all’1 and ‘non-appropriation’2 as provided for in the Outer Space Treaty 1967.3 But with the recent involvement of private companies in space faring, the industry has developed at an unprecedented rate not anticipated as at the making of this treaty thereby raising doubts as to the continuing viability of these principles. This articles therefore examines the viability of the continuing application of these two principles in the light of the growing prospects of economically beneficial exploitation of outer space resources.
2.0 RATIONALE BEHIND THE PRINCIPLES
The twin principles of ‘non-appropriation’ and ‘use for the benefit of all’ stem from Outer Space status as a global common. Under international law, the outer space together with the high seas, the atmosphere and the Antarctica constitute what is called ‘Global commons.’4 ‘Global Commons’ encompasses spaces beyond national jurisdiction, they belong to no nation but every nation has rights of access.5 These resource domains are guided by the principle of the common heritage of humanity, therefore rules governing their resources reflects such objectives. Unsurprisingly, Article 1 of the Outer Space Treaty prescribes that “the exploration and use of outer space…shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development…”, while Article 2 also establishes that “outer space…is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. These principles have been continually echoed all through provisions of the other UN space laws,6 and they also reflect the reality as at the time of drafting those treaties.
The purposes of these principles are however not far fledged. Considering the massive prospects and potentials in space faring, it is not hard to imagine a repeat of what happened in 1945 with the continental shelf when the US unilaterally proclaimed jurisdiction over the natural resources of the continental shelf adjacent to her coasts. Other States began making similar claims, leading to the eventual modification of the international law of the sea in the sense of sovereign rights of coastal states over the exploitation of continental shelf resources.7 Hence, the principles are in existence to prevent the dominance of space resources by a few nations by balancing the race for access to space resources by developed countries, with the need to ensure better access to space for developing countries. The principles also operate to avoid potential conflicts over sovereignty rights that might arise once nations establish settlements in space.8
It should however be noted that the treaty embodying these principles was made based on certain situations which were expected to persist. Hence, two points should be noted here;
First, the emphasis on ‘exploration and use’ reflects the general approach to space faring at that time. During the 1960s till the 80s, space faring missions were directed at testing states capability in space exploration as opposed to active exploitation of resources.9 Therefore, missions like the Apollo 11 moon landing, launching of space telescopes, cosmonauts space walks and the assembly of the International Space Station were the major ones around that time, with the only activity close to resource exploitation being the allocation of the geo-stationary orbit and frequency spectrum(which will also be examined in this work).
Second, the laws are state centered. The treaties though making mentions of organizations, do not seem to anticipate entrepreneurial endeavors to become so prominent. Therefore, the principles were made in the light of continuing involvement of states as major actors in space faring. However, things have changed especially the context within which these principles were made. These changes, largely unanticipated raises questions as to how exactly the principles will fit into the modern reality, as will be examined below.
3.0 THE PARADIGM SHIFT
Space law is experiencing a significant deviation from the 1980s approach with the adoption of domestic laws directed at regulating space activities conducted by private organizations. Thus, while international law remains the general framework for space activities, these activities are now directly governed by national law.10 In the light of prospective endeavors, these national laws governing space activities appears to place the law at the call of entrepreneurial innovation. This evolution is exemplified in the US privatization of outer spaceflights through the establishment of public-private partnership contracts.11 Innovation is also encouraged by the adoption of laws to govern new areas like the exploitation of celestial bodies and sub-orbital flights.12
These developments signify a paradigm shift from the traditional national space involvement to a much more supporting and regulatory role for states, with the aim of opening up the space industry to entrepreneurial adventures. In the light of these developments, the operation of the principles, and their continuing viability will now be examined in the context of two specific space resources/activities namely; orbital/frequency resources and prospective space mining.
4.0 THE PRINCIPLE IN THE CONTEXT OF GEOSTATIONARY ORBITAL SPACE AND FREQUENCY SPECTRUM
Satellites are essential to the sustainability of many operations on earth, and there are particular orbital positions they have to be put in to get the best out of them. The geostationary orbit13 is the orbit most suitable for telecommunications and weather satellites, hence it is densely occupied by them.14 Thus, the twin resource of orbital space and frequency spectrum although not exhaustible are limited considering that a sufficient gap is required between satellites in order to avoid collisions and also to prevent interference between radio waves.15 The International Telecommunication Union (ITU) has evolved a number of methods to allocate these resources between states.
Beginning with the first come first serve rule, which has been applied as early as the 1960s, orbital positions and frequencies were delivered to the first occupant of such orbital position.16 Although, in theory this rule creates no property rights for first-time users, it has been the subject of increasing criticism from developing countries. These criticisms are justifiable in the light of the fundamental principle of ‘benefit of all’ since the principle does not seem to promote equity access to space resources. Also, considering that the first to access the orbital space is the first to receive satisfaction, the absence of a form of rotation between states may lead to a perpetual use of the orbital space thereby violating the principle of ‘non-appropriation’. Hence the continued application of the rule made sure that the distribution of waves and orbital positions were almost exclusively to the advantage of developed countries.
These concerns led to the introduction of the planning approach under which frequency and orbital position plans were drafted in order to preserve the resources for future use by all countries, especially those which lacks the current capability to explore space resources.17 This development began with broadcasting satellites or direct television satellites in 1977 when each country received one geostationary orbital position and five frequency channels.18 A similar feat was attained for fixed satellite service few years later. Through the 1985 and 1988 sessions of the World Radio Conference, it was agreed that at least one orbital position be accorded per country on an arc and a predetermined band.19 In order to avoid freezing this allocation regime, the plans established by the ITU World Administrative Radio Conference is also subject to periodic revisions.20 This rule of allocation operates outside the limitations of the first come, first served rule, hence allaying the early concerns of developing nations.
With the above, it appears that the allocation methods under the current ITU regime have evolved to incorporate both the principles of benefit of all and non-appropriation. However, the nature of the resources should also be considered, they relate to orbital space and virtual space (aspects where states still venture directly). Hence, whether such feats can be attainable in the case of terrestrial resources is still very much in doubt and will therefore be examined next.
5.0 THE PRINCIPLES IN THE CONTEXT OF PROSPECTIVE SPACE MINING
Earth is facing depletion of natural resources, but celestial bodies including asteroids have many of these resources in huge quantities. Although there is no international legal framework directly applicable to mining these celestial resources, sates like the United States of America and Luxembourg have adopted national laws allowing private companies exploit and sell the resources of celestial bodies.21 Ultimately, many more developed states are expected to follow suite22 in a step which seems to run up against both the principle of benefit of all and non-appropriation.
Beginning with the principle of non-appropriation, two arguments are advanced in support of the validity of the aforementioned national laws. On the one hand, celestial mining is protected by the freedom of use of outer space as provided for in Article I of the Outer Space Treaty.23 While on the other hand, Article II of the Outer Space Treaty does not make reference to resources, but only to celestial bodies. The principle of non-appropriation lacks application to resources. Thus, it is argued that while the appropriation of a celestial body is prohibited, the exploitation of its resources ought to be lawful.
Notably, non-sovereign use is not without historical precedents. Many countries, like the United States, exploited minerals in the Arctic Sea’s Spitzbergen Archipelago in the early twentieth century without making any territorial claims to the islands itself.24 In addition, the American law itself expressly states that the United States of America does not claim any ownership rights in outer space.25
Coming to the principle of benefit of all, there is the view advanced by those supporting the position of the developing countries that, Article I of the Outer Space Treaty must be interpreted to mean that once mined, benefits from products of celestial resources must be shared and that an effort should be made to distribute these proceeds in a manner that benefits needy nations.26 However, while this view seems to place emphasis on the exact wordings of the Outer Space Treaty, it is unlikely that such proposals will help developing countries in any way, because such kind of redistribution regime will hinder the provision of a stable legal framework needed to encourage entrepreneurs to venture into such mining activities,27 especially in the light of the silhouette cast on world economy by the coronavirus pandemic.
Therefore, it appears that while the twin principles of ‘benefit of all’ and ‘non-appropriation’ have served to protect developing nations in the apportioning of orbital and frequency resources, it is hard to make a case for this continuing protection in the case of terrestrial resources considering the need for increased private involvement. Hence, while nations may be strongly bound to act in the interest and for the benefits of developing nation, the business of private companies first and foremost is providing services and making returns.
6.0 RECOMMENDATIONS AND CONCLUSION
Given the uncertainty of the operation of the fundamental principles of ‘benefit of all’ and ‘non-appropriation’ in the light of prospective exploitation of celestial resources, it is important to bring the debate back to an international forum, and find a framework to govern this aspect.28 While Article 11(5)29 of the Moon Agreement30 ought to be instrumental in making such a forum a reality, unlike the Outer Space Treaty, the Moon Agreement has not gained wide application as it is only binding on 18 nations,31 none of which is a major space power. However, with France, which is a signatory, but is yet to ratify it, this initiative can still be actualized.32
Most importantly, the writer points out that the application of these principles still has its potential but with a more liberal regime. Hence, speaking about a framework, it is suggested that the UN is placed in a position to be evinced as holding the outer space in common for the benefit of all, thereby encouraging states to empower the Committee on the Peaceful Uses of Outer Space (UNCOUPUOS)33 in mining matters just as they did the ITU in orbital space. Therefore, the UNCOUPUOS may now evolve a form of licensing system under which states may acquire licenses to mine particular amount of land mass on celestial bodies for a particular amount of years. It is further suggested that while the first few years of these licenses should be free at least to give the industry time to attain its balance, subsequently, the licenses should be acquired for a consideration determined by UNCOUPUOS.34 The proceeds from these licenses may now be split between footing the running costs of the framework and beneficial projects in developing countries. Through this system, states discretion in appropriating celestial resources can be curbed (non-appropriation) while, proceeds from the licenses can be used for the ‘benefit of all’.
About the Author
Shalom Ajibade is a fourth year student of Law in the University of Lagos with interest in Space Law, International Commercial Arbitration and Investment Law.
1 See Article I Outer Space Treaty.
2 See Article II Outer Space Treaty.
3 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
4UN Global governance and governance of the global commons in the global partnership for development beyond 2015.
Availableat:https://www.un.org/en/development/desa/policy/untaskteam_undf/thinkpieces/24_thinkpiece_global_governance.pdf (accessed 17 August 2020)
5 Surabhi Ranganathan, Global Commons, European Journal of International Law, available at: https://academic.oup.com/ejil/article/27/3/693/2197248 (accessed 17 August 2020).
6 Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space; Convention on International Liability for Damage Caused by Space Objects; Convention on Registration of Objects Launched into Outer Space and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.
7 The United Nations Convention on the Law of the Sea (A historical perspective, available at: https://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm (accessed 17 August 2020)
8 Martin Menter, Commercial Space Activities Under the Moon Treaty, in Proceedings of The Twenty-Third Colloquium on The Law of Outer Space 35 (1980)
9 James A. Vedda, The Three Stages of Space Development, available at: https://spacenews.com/three-stages-space-development/ (accessed 17 August 2020)
10 For example, in France, space activities fall under LOI n° 2008-518 du 3 juin 2008 relative aux opérations spatiales.; The Future Space Legal Issues available at: https://www.spacelegalissues.com/the-future-space-legal-issues/ (accessed 17 August 2020).
11 These arrangements are made under programs like the 2005 Commercial Orbital Transportation Services (COTS), the 2008 Commercial Resupply Service (CRS), and the 2010 Commercial Crew Development (CCDeV).
12 Ibid.
13 The geostationary orbit is situated above the Equator at an altitude of approximately 35 786km. One advantage a geostationary satellite has over other orbiting communications devices is that a ground station need not have a complex mechanism for receiving or transmitting signals. To receive or send transmissions the antenna is permanently aimed at the position in the sky occupied by the satellite
14 ESA, The Geostationary Orbit, available at: https://www.esa.int/Education/3._The_geostationary_orbit (accessed 17 August 2020)
15 Pursuant to the current ITU Constitution “radio frequencies and any associated orbits, including [but not limited to] the geostationary-satellite orbit, are limited natural resources and they must be used rationally, efficiently and economically” (Art. 44.2).
16 Mark Griffin, Orbit/Spectrum Allocation Procedures, available at: https://www.itu.int/en/ITU-R/space/workshopBangkok2010/03a-Orbit_Spectrum%20Allocation%20Procedures_MG.pdf (accessed 17 August 2020).
17 The First Come, First Served Technique in Space Law, available at: https://www.spacelegalissues.com/the-first-come-first-served-technique-in-space-law/ (accessed 17 August 2020).
18 Georgetown Space Law Group, The Geostationary Orbit: Legal, Technical and Political Issues Surrounding Its Use in World Telecommunications, 16 Case W. Res. J. Int’l L. 223 at 241 (1984) Available at: https://scholarlycommons.law.case.edu/jil/vol16/iss2/4 (accessed 17 August 2020).
19 ITU Radio Regulatory Framework For Space Services available at: https://www.itu.int/en/ITU-R/space/snl/Documents/ITU-Space_reg.pdf (accessed 17 August 2020).
20 Ibid.
21 US adopted Space Resource Exploration and Utilization Act in 2015, while Luxembourg adopted its Law on Exploration and Use of Space Resources in 2017.
22 Other countries are in the process of developing national legal frameworks for the commercial exploitation of space resources, such as the United Arab Emirates, and Saudi Arabia. If the national normative movement continues with the adoption of other laws, the international law of outer space, like the international law of the sea, could be modified.
23 Article 1 of the Outer Space Treaty also provides that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States…”.
24 See L.F.E. Goldie, Is There a General International Law of Original Ownership? The Possible Relevance of General Doctrines Governing the Possession of Deep Ocean-Bed Resources, in Proceedings of The Nineteenth Colloquium on The Law of Outer Space 289 (1976).
25 Sec. 403 Space Resource Exploration and Utilization Act 2015.
26 Edwin W. Paxson III, Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development, 14 MICH. J. INT’L L. 487 at 495 (1993). Available at: https://repository.law.umich.edu/mjil/vol14/iss3/8 (accessed 17 August 2020).
27 Silvia M. Williams, The Principle of Non-Appropriation Concerning Resources of the Moon and Celestial Bodies, in Proceedings of The Thirteenth Colloquium on The Law of Outer Space 157 (170).
28 This in fact will be in line with Article 11(5) of the Moon Treaty infra.
29 The article provides that: “States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible”.
30 The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement).
31 Treaty Status, the Moon Agreement, available at: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIV-2&chapter=24&clang=_en (accessed 17 August 2020).
32 Ibid.
33 The Committee on the Peaceful Uses of Outer Space (COPUOS) was set up by the General Assembly in 1959 to govern the exploration and use of space for the benefit of all humanity: for peace, security and development.
34 A regime similar to the ITU satellite filing processing fees which began in 1998.
