Breaking the Bonds of Earth: Unveiling the Laws that Fuel the Galactic Gold Rush

The Outer Space Treaty (‘the Treaty’) set the stage for international space law, outlining the limits of how States should conduct themselves when it comes to exploring and using outer space. However, as we find ourselves in the 21st century, facing an escalating resource and energy crisis, the application of the Treaty has become increasingly ambiguous. The need for resources has sparked a wave of interest in the abundant riches of outer space, leading scientists to contemplate whether these resources could serve as a lifeline to sustain life on Earth. Unfortunately, the existing international legal frameworks fail to adequately address this new reality, leaving us grappling with uncertain territory.

The inception of international space law

The primary legal instrument governing the international space law framework is the Outer Space Treaty of 1967. The overriding object of the Treaty is to ensure that outer space is only used for peaceful means and the good of ALL States. The inception of the Treaty was prompted in the 1950s by the introduction of intercontinental ballistic missiles, which could enter outer space to reach their targets. The ensuing arms race during the Cold War highlighted the urgency to enforce a ban on military activities in outer space. As of November 2022, the Treaty has been ratified 112 times and has 23 signatories.

Principles on resource extraction in outer space

Resource activities are a permitted ‘use of outer space, including the Moon and other celestial bodies’, according to Article 1 of the Treaty. This provision makes resource extraction for use on Earth a possibility once it becomes viable. However, a State extracting resources must bear in mind that they are to use it ‘for the benefit and in the interest of all countries’. The Treaty does not provide any guidance on how this principle is to be fulfilled, which highlights its need for clarification, given that technology and science may make resource extraction in outer space a reality in the coming years.

Another issue relating to resource extraction is the principle of non-appropriation, outlined in Article 2 of the Treaty. This provision states that ‘outer space… is not subject to national appropriation by claim of sovereignty, by means of use or occupation’. This principle is supported by Article 9, which states that a State must give ‘due regard to the corresponding interests’ of other States. The issue with Article 2 is that there is contention as to if a distinction can be drawn between the appropriation of the resources extracted from a celestial body or the appropriation of the celestial bodies themselves. If a distinction can be made out, only the appropriation of an entire celestial body would be prohibited. This interpretation would have a major impact on the commercial prospects of resource extraction in outer space.

The Treaty falls short of addressing the pressing issues raised by the resource and energy crisis on Earth. Considering the growing interest in extracting resources from outer space, the existing legal framework lacks the clarity needed to navigate this new frontier.