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Men on the Moon: The Law Behind Space Exploration
Mr. Bernard Foing, Ambassador of the European Space Agency-driven “Moon Village” scheme recently stated that human settlements on the moon could soon be a reality. Earlier this year, UAE announced plans to build a city on Mars by 2117. While space explorations make for interesting reading from a scientific perspective, no doubt, the law behind these projects is as interesting. In fact, few are aware of the legal intricacies that govern such space-oriented programmes.
Background
The spike in the number of space missions the world over has resulted in a corresponding increase in the development of the law of outer space, where generally accepted principles are being formulated, maintaining a delicate balance between the interests of various states involved and the welfare of the international community as a whole.
Where is ‘outer space’ for a nation?
Earlier, the airspace above countries was governed by the usque ad coleum rule, stating that a state will have sovereignty over territorial airspace to an unrestricted extent. This would have meant having to take the permission of every country whose airspace was being used for the passage of satellites and other space vehicles, every time such a vehicle was to be launched. One can only imagine how cumbersome it would have been.
Instead, now, the sovereignty of states over their airspace is limited in height at most till where the airspace meets space itself. The exact limits of this boundary are difficult to state precisely, since they depend on technological and other factors. Rough estimates that have been advanced are between 50 and 100 miles. For example, the UK holds that “for practical purposes the limit [between airspace and outer space] is considered to be as high as any aircraft can fly.”
Laws on outer space
The following are the salient features of space law:
- States have agreed to apply the principles of res communis with respect to outer space. Res communis is a Latin term that is used for a thing that is commonly owned or used commonly by all, such as natural resources. Used in the context of space it means that no portion of outer space may be appropriated to the sovereignty of and for the exclusive use of individual states.
- The Declaration on International Co-operation in the Exploration and Use of Outer Space adopted in resolution 51/126, 1996 invited greater international co-operation, with special emphasis on the benefits for and interests of developing countries and countries whose space programmes are at the nascent stages through international collaboration with countries with more advanced space capabilities.
- In 1967, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies was signed. This also states that nothing in outer space, including the moon and other celestial bodies, is subject to national appropriation by any means.
- The onus for national activities in outer space, irrespective of whether the activities are carried out by government agencies or by non-governmental entities, vests in the appropriate state party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
As regards space-research activities on the moon, the Agreement Governing the Activities of States on the Moon and other Celestial Bodies was adopted in 1979:
- The exploration and use of the moon has been envisaged as the “province of all mankind” (open to all) and is to be carried out for common benefit.
- The moon and its natural resources have been treated as the “common heritage of mankind” and are not to be appropriated by nations individually for personal use.
- No private rights of ownership over the moon or any part of it or its natural resources can be created.
- An international regime to determine and govern the exploitation of the resources of the moon, when it become feasible, was envisioned. However, this has not come into force till now.
- The regime was to ensure the orderly and safe development of natural resources of the moon;
- The resources were to be managed rationally;
- Opportunities in the use of the resources were to be expanded; and
- An equitable sharing by all states parties in the benefits derived from the resources was sought, wherein the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, were to be given special consideration.
The starry-eyed syndrome?
Till date, only 17 states are parties to the Agreement Governing the Activities of States on the Moon and other Celestial Bodies. Further, the absence of this international regime regarding exploitation of resources of the moon, amid plans to set up human settlements there and on other planets, does not bode well for the times to come. Firstly, a low number of parties to the treaty indicates a reluctance on the part of nations to reach a common understanding on this crucial issue. Secondly, the fact that an international regime has not been agreed upon till date, despite the leaps in space exploration and the ambitious missions contemplated in future shows that ultimately, nations’ self-interest is playing a greater role than it ought to with respect to this “province of all mankind”. Thirdly, in these turbulent times, if an agreement is not reached on this issue soon, a war of words on appropriation and exploitation of resources is bound to erupt sooner or later.
Conclusion
While it is some consolation that there are laws in place to govern nations’ activities in outer space, it is but a mere stepping stone in the larger scheme of things. There is much to be done if space exploration is to be undertaken for the common good of all. In the absence of clear definitions of terms like “common heritage of mankind”, developing countries are rightly afraid of dominance by developed nations in decision-making, both with respect to exploration and use of the resources from celestial bodies.
The idea of human settlements on the Moon and on Mars is all very well, but that does not take away from the fact that contemplation about the legal angles therein should be done soon, and not once in a blue moon!
