Space Law — Rights and Resources

An interview with Prof. Frans von der Dunk

At the height of the space race in the 1960s, countries around the world first ratified the Outer Space Treaty to prevent any nuclear conflict from extending into outer space and to ensure its use for peaceful purposes. Today, there’s a new kind of space race, one that involves private tourism and resource mining and extraction. And with more players entering the field, including nation-states like India and China and private companies like Blue Origin and SpaceX, how will existing treaties apply? Space law expert Professor Frans von der Dunk explores how the Outer Space Treaty and customary international law applies to modern space activities and addresses the open questions of property rights for celestial and lunar natural resources and liability issues when private enterprises operate in space.

Watch Part 2 of Space Law — Rights and Resources.

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An Interview with Professor Frans von der Dunk

Outer space is largely governed by treaties and customary international law, which began developing in the 1960s. Space exploration today is no longer limited to the U.S. and Russia. China, EU, India, Israel, and other countries as well as private companies are also pursuing projects. Major legal issues in space include rights to mine and extract resources, ownership of resources, liability in space tourism, and militarization in space.

Major Outer Space Treaties

1967 Outer Space Treaty — Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies
- General principles include:
  - Exploration and use of outer space to be carried out for the benefit of all mankind;
  - Outer space to be free for use by all States;
  - States shall not place nuclear weapons in orbit or station them in outer space;
  - The Moon and other celestial bodies to be used for peaceful purposes; and
  - States liable for damage caused by their space objects.
1979 Moon Agreement — Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
- Not ratified by the major spacefaring nations
- Governs states’ activities on the moon and other celestial bodies in the solar system. Agreement calls for an international standard on exploitation of resources in space.
1968 Rescue Agreement — Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space
- Requires states to take all possible steps to rescue astronauts in distress and, upon request, to provide assistance to the launching state in recovering space objects that return to Earth.
1972 Liability Convention — Convention on International Liability for Damage Caused by Space Objects
- Requires the launching state to pay compensation for damage caused by its space objects

Territorial Sovereignty and Space Resource Mining

The Outer Space Treaty prohibits countries from exercising territorial sovereignty but does not specifically mention resource mining. Article 1 provides that activities in outer space “shall be carried out for the benefit and in the interests of all countries.” Outer space is the “province of all mankind.” Article 2 provides that states may not claim sovereignty over the moon and other celestial bodies.
Article 11 of the Moon Agreement provides that space resources are the “common heritage of mankind.” None of the major spacefaring nations have ratified the treaty.
Artemis Accords 2020
- NASA and several partner countries signed the Artemis Accords to establish principles to guide space exploration cooperation. Part of NASA’s mission through the Artemis program is to land the first woman and first person of color on the moon.
- Purpose of the Artemis Accords is to help avoid conflicts in space and to establish responsibilities and other legal provisions through bilateral agreements.
Resource extraction and drawing a parallel to international maritime laws
- 1994 United Nations Convention on the Law of the Sea
  - Establishes the framework for all international maritime activities, including the international authority to manage the regulatory regime and license private enterprises.
  - Applies the “common heritage of mankind” principle to deep seabed resources.

Liability and Rescue Obligations in Space Tourism

Space tourism currently includes orbital (transport to and long-term stay in orbital facilities) and suborbital (shorter flights to the lower atmosphere of space).
Private activities in space are generally permissible. Responsibilities lie largely with the launching state and/or registered state. Under Article 7 of the Outer Space Treaty, the launching state is liable for any damages to another state party. Under Article 8, the registration state of a space object retains jurisdiction and control over the object while it is in space.
The Outer Space Treaty Article 5 and the Rescue Agreement requires states to render assistance to astronauts in distress in space. The question remains as to whether the requirement extends to space tourists and to what extent.

Weaponization and Militarization in Space

Article 4 of the Outer Space Treaty prohibits nuclear weapons or any other kinds of weapons of mass destruction in space. It also prohibits the establishment of military bases and military activities other than for scientific research or for any other peaceful purposes.