By Vidya Sagar Reddy Contributing Writer June 30, 2017

The common challenge to the spirit of Outer Space Treaty (OST) has been the testing of anti-satellite weapons and missile defences that signal the possible escalation of terrestrial conflicts into space. However, the recent calls for a comprehensive review of this treaty within the United States did not come from concerns about space weaponization but protecting commercial entities interested in space mining.

No matter the variety of interpretations of the laws and provisions of the OST, it has become clear that this Cold War-era treaty cannot guarantee international legal protection in this context. Rather than trying to amend the OST, the US could instead use its diplomatic energy to revitalize the Moon Treaty. The Moon Treaty contains a provision that, if executed, could help regulate and protect space mining entities with the US retaining its lead in the emerging international race to mine space resources.

Unlike the times of Cold War when it was the prerogative of the government to explore space, often for geopolitical purposes, the widening American interest in reaching the final frontier is propelled by the prospects of commercial space mining.

The Moon and other celestial bodies such as asteroids contain a vast amount of minerals that are traditionally mined from Earth for manufacturing. Even as debates continue on extraction technologies, purification mechanisms and efficiency of space resources, US-based companies interested in space mining sought legal backing for at least ensuring the flow of funds into their ventures.

The Obama Administration passed the Commercial Space Launch Competitiveness Act (CSLCA) in 2015, granting legal rights and protection to US citizens engaged in space mining to own, transfer, and sell mined space resources but without granting exclusive ownership over the celestial bodies.

The US also has granted launch permission to a commercial spacecraft destined to go beyond earth orbits for the first time. The spacecraft belonging to the US company Moon Express  would also emerge as the first commercial mission to land on the moon in 2017. Moon Express aims to mine the Moon for resources including water as well as offer support services for similar ventures in the future.

Even as these developments, particularly the CSLCA, spurred a debate about the provisions of the OST with regard to the rights on space resources, US Senator Ted Cruz, Chairman of Senate Commerce Subcommittee on Space, Science, and Competitiveness, called for a hearing on amending this 50-year-old treaty. The OST was drafted during the height of the Cold War when the US and the Soviet Union were locked in intense geopolitical competition to dominate outer space. It declares that states cannot claim outer space, the moon, or other celestial bodies on the basis of claims of sovereignty, use, occupation, or any other means. Article VI of the treaty made states responsible for activities by non-governmental organizations in outer space.

At the moment, commercial exploitation of outer space is only governed by national laws and certain international norms. Currently, these commercial activities are extended so far as geostationary orbit only with Moon Express trying to break the new frontier by landing on the moon. Even though the states are responsible for commercial entities operating on the Moon and other celestial bodies, these rules and norms have yet evolved to be consistent with the emerging situation.

The ‘national appropriation of natural resources in place’ clause in the OST remains vague. The passage of the CSLCA essentially signals that the OST does not explicitly prohibit ownership of ‘extracted resources’ and therefore it is entirely the prerogative of the states to enact laws enabling use of such resources. However, even the CSLCA is vague when it comes to ‘access to resources in place’ at a particular location on the celestial bodies.

Although the American Space Technology for Exploring Resource Opportunities In Deep Space Act (ASTEROIDS Act) introduced in the House proposed ‘first in time, first in right’ rule to prevent such conflicts, the CSLCA that absorbed this act pared down the tone limiting itself to legal protection for extracted resources. Still, these are only US laws and therefore cannot be helpful in a potential conflict in which, for example, Moon Express and China’s state agency compete for same location on the Moon.

Regardless of American laws and American movement in space development, other nations around the world are rapidly growing their involvement in this arena. China is developing the capability to land on and return samples from the Moon with potential to kick-start space mining. The European Space Agency is lending technical assistance and communications capabilities to the Chinese and is floating the idea of a Moon Village. Mining and in-situ utilization of lunar resources form a core element of this concept. Russia is also a potential partner for Europe or China in this regard. Luxembourg, on the other hand, has enacted laws incentivizing commercial entities interested in space mining to open up shop in its territory.

In the absence of a competent international authority that could legally lay out the rules and limits for commercial operations on celestial bodies, the onus is on states to offer security to personnel, vehicles, and installations under their jurisdiction without recourse to judicial proceedings. This could potentially lead to escalation which does not bode well for the spirit of either space exploration for the benefit of mankind or international law that strives to maintain peace under anarchy.

The US was at the forefront of treaty-making during the heights of Cold War to reduce tensions and maintain stability. The OST was one such act that evoked international activism to safeguard the final frontier. The subsequent Moon Treaty is considered a failure despite entering into force in July 1984 because none of the advanced spacefaring nations would sign it. Even so, the Moon Treaty has a proposition that could unknot the current situation.

The Moon Treaty proposes establishing an international regime to govern exploitation of space resources whenever it becomes feasible. It seems that such a proposal is counter-intuitive to the laissez-faire economic system of the US. However, the treaty also makes states responsible for configuring appropriate governing procedures for the international regime to follow. This means that the US could utilize its diplomatic potential to frame appropriate rules for supporting commercial space mining in addition to gaining international legal protection for these entities.

The Obama Administration operated on the assumption that the US should write the rules of the system during the negotiations for Trans-Pacific Partnership. The former President said, rightly, that the global commons and international trading system have to remain open, liberal, and transparent. The United States should take the initiative to define the international rules of space use. A new consensus on the use of space is being built piecemeal and it would be in the best interests of the US and the liberal world order for the United States to take a leadership role and ensure equitable access to space. It is imperative to carry this spirit forward to ensure the final frontier does not descend into a new Wild West where survivalist tendencies lead to the use of force.

Instead of opening an OST regime that could actually lead to more chaos, the US should lead international consensus on either setting up an international regime in discussion or establishing a new international space treaty that will protect its national interests in the final frontier that is safe and secure.

Vidya Sagar Reddy is a research assistant in the Nuclear and Space Policy Initiative of the Observer Research Foundation, New Delhi.

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