How can our understanding of equity on Earth help us preserve and share the global commons beyond us?
Hansdeep Singh, ICAAD Co-Founder and Legal Innovator, leverages rigorous multidisciplinary research to support local justice initiatives and build evidence-based frameworks for advocacy and systemic change. His extensive experience includes work with Human Rights Watch, the International Criminal Tribunals for Rwanda and the former Yugoslavia, and community-based organizations addressing post-9/11 civil rights. This diverse background enriches his perspective on the intersection of legal institutions and justice, emphasizing the lived experiences of affected communities.
The Artemis Accords provide a critical lens to examine how we as a civilization will move forward in our relationship with the cosmos. Initially spearheaded by the United States in 2020 with seven founding members – Australia, Canada, Japan, Italy, Luxembourg, United Kingdom, and the United Arab Emirates – it has now grown to 43 signatories as of August 2024. Similar to international treaties, the Accords which are bilateral agreements are slowly moving towards gaining international consensus. This would seemingly be a profound moment of global cooperation, yet, when we read the U.S. Commercial Space Launch Competitiveness Act of 2015 (“Space Act of 2015”) and the Accords in conjunction, there are serious concerns that the U.S. is using unilateral action to pursue aims that conflict with international law. It is important to note that space-faring nations such as India, France, China, Russia, and Germany are not part of the Accords.
While the fundamental stated purpose of the Artemis Accords is to foster “a safe, peaceful, and prosperous future,” those who are most likely to realize this prosperous future are space-faring nations and private corporations generally representing the Global North with India being the clear exception. As a fragmented global community, we exclude based on citizenship, maintain power disparities through discriminatory policies and income inequality, and ensure a small subset of privileged nations and corporations reap a disproportionate benefit from earth’s resources. With this reality, it is more likely that we will replicate current and past injustices as we seek to “colonize” and extract from celestial bodies like the Moon.
One of the key sections of the Space Act is Title IV, Space Resource Exploration and Utilization Act (“SREU Act”), which attempts to provide the legal justification for space mining that includes the ability to “possess, own, transport, use, and sell” extracted resources from celestial bodies (including asteroids). In essence, this provision creates property rights within space, which seemingly contradicts both the substance (non-appropriation principle) and spirit (global commons) of the Outer Space Treaty (OST). This “unilateral grant of property rights” puts the Space Act in a direct collision course with international obligations, including the OST which the U.S. ratified in 1967.
Previous Space treaties, including the seminal OST, sought to ensure that our movement into the cosmos was driven by a human desire to understand the unknown and that any exploration was to be done with caution, humility, and with a recognition that whatever value or benefit we derive from space exploration, it was the “province of all mankind.” Underpinning those sentiments was the freedom to explore, have unfettered access to celestial bodies, and facilitate scientific endeavors that fostered international co-operation “for the benefit and in the interests of all countries” as detailed in Article I & III.
Moreover, Article II of the Outer Space Treaty placed constraints on States by noting that “the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Furthermore, Article IV of the Treaty sought to reign in private entities by noting that the “States . . . bear international responsibility for national activities in outer space” even when carried out by private entities, and that States are responsible for “continuing supervision” of private entities.
Based on this incongruence between the Accords, Space Act, and OST, criticism has been aimed at the U.S. for trying to replace the global governance responsibilities of entities like the United Nations Committee on the Peaceful Uses of Outer Space (COPUOUS). Both Russia and China have identified the risk of replicating our earthly alliances via allied blocs and extending it to space exploration rather than envisioning joint collaborative operations. Global South non-signatories have voiced that the Accords do not sufficiently address the concerns of developing nations and fear that even if they have access to space resources and technologies that it will not be equitable. These are not new concerns, but have been expressed going back to the 1970s with discussions around putting satellites into orbit around earth. Recently, members of COPUOUS stated that “the utilization by States of the geostationary orbit on a “first come, first served” basis was unacceptable and . . . should therefore develop a regime guaranteeing equitable access to orbital positions.”
Even with these concerns, some space-faring countries are pushing forward with designs on space mining without due consideration for international law principles as evidenced by the Artemis program. Since 2020, the U.S. government, through NASA, is trying to establish that resource extraction via its Artemis Program is lawful by providing contracts and promising payments ($1 to $15,000) to several companies to extract lunar regolith (moon soil) and transfer ownership to NASA. This can be extremely problematic if we expand our scope to look at analogous situations, for example, deep sea mining.
Recently, the International Seabed Authority (ISA), which regulates deep sea mining, put a precautionary pause on any mining activity of polymetallic nodules found in the Clarion-Clipperton Zone in the central Pacific Ocean because of the discovery of “dark oxygen.” This marks the first time we have identified a form of oxygen arising from a source outside of photosynthesis. The importance of the polymetallic nodules for mining companies is that they contain metals like manganese, nickel, cobalt, copper, and rare earth elements that can potentially power green technologies, including batteries used for electric vehicles. The unprecedented scientific discovery weighed against resources that could benefit the planet are vital considerations, however, the precautionary principle encourages us to take preventative action in the face of uncertainty and the proponents of mining are responsible for showing that mining in this area would not harm an understudied ecosystem that could theoretically provide clues to the origin of life on earth and may be essential to maintaining the diverse life found in this part of the ocean. This is without even contemplating whether the polymetallic nodules themselves are the source of the dark oxygen through a process of electrolysis occurring between the metallic nodules and seawater. If they are, what does that mean for the ecosystem? For example, even scientific studies of the polymetallic nodules, which were supposed to have a limited impact, reveal that there have been no signs of recovery in that area.
Both the OST and United Nations Convention on the Law of the Sea (UNCLOS) have similar provisions that preserve the idea that both space and the high seas/ deep seabed are part of the global commons. Resource extraction, and the decisions whether or not to extract, should therefore be equitably shared between nations, with an eye towards the “special needs and interests of developing countries, whether coastal, land-locked, or geographically disadvantaged.” What constitutes equitable sharing of benefits is still an open question that requires much debate and was recently discussed at the U.N. Conference on Sustainable Lunar Activities 2024 and organized by the U.N. Office for Outer Space Affairs (UNOOSA).
Although there is no clear mechanism for resource sharing under International Space Law, the ISA under UNCLOS has a benefit sharing mechanism, which relies on royalties to the ISA that is then equitably distributed to states. Yet, there are several critiques about the process, including: lack of transparency in how fees are collected and distributed, insufficient technology knowledge transfer to developing nations, and that economic benefits could outweigh important environmental concerns.
In the race to mine celestial bodies, we must learn from the current challenges facing deep sea mining and undertake rigorous international debate to identify the responsibilities we have to the preservation and sharing of the global commons. Only then, can we grapple with the difficult questions of what environments should be protected zones and what an equitable sharing practice from resource extraction in space could look like. By ignoring these questions and “not rooting out coloniality from space exploration, space exploration will always be space exploitation of humans and nature.”
