This has been an exciting year. First, India is a signatory to the US Artemis Accords, a non-binding arrangement with NASA, which explores the implementation of provisions of the Outer Space Treaty, 1967 and other international instruments, thereby establishing a political understanding regarding mutually beneficial practices for future use of outer space. Second, the deepening of US-India engagements, particularly iCET — establishment of the US-India Civil Space and Commercial Space Working Groups — has met with excitement and expectations.
Surpassing all else is the Chandrayaan 3 landing on August 23. This is an appropriate time to evaluate recent developments that have far-reaching implications for the future of outer space activities for peaceful purposes, and, perhaps for the future of the Outer Space Treaty itself.
Is Outer space a “global common”? Traditionally, “global common” is used to define those parts of the planet that fall outside the sovereignty of any state. It is a concept built upon the legacy of Grotius’s idea of mare liberum (free sea), an idea that aimed to preserve the freedom of access and benefit of all. The term is used typically to describe supra-national and global resource domains in which common-pool resources are found. The UN identifies four “global commons”, namely the high seas, the atmosphere, Antarctica and the outer space. The question has been discussed since the prospect of off-Earth commercial planetary resource extraction and utilisation became a possibility in the second decade of the 21st century.
Many have categorically answered in the negative. Others have argued that outer space is a “global common” and must remain so, concerned that the rejection of this widely accepted, fundamental construct threatens the ability of developing countries to benefit from freedom of access and benefit of all guaranteed under the principles of the Outer Space Treaty.
In the absence of an authoritative definition, “global commons” could be viewed from two lenses. First, when rooted in geopolitical or military relevance, it is generally viewed as an enabling concept. When we consider “global common” from these perspectives, it is not surprising that security establishments across the world recognise domains beyond the national jurisdictions, including the high seas, the air space outside territorial bodies of a state, and outer space, as vital connecting channels for the international order. Others recognise outer space as a vital operational domain for keeping their nation safe while upholding international law. After all, if outer space as a “global common” were rejected, by what logic would high seas continue to be regarded as one? How then could a collective regional security initiative like the QUAD continue to legitimately call for the freedom of navigation? Indeed, open access is vital for a nation’s security and economy.
Second, “global common” is viewed as a constraining concept based on the economic and commercial implications of shared resources, which could be overused by some at the expense of others, regardless of national jurisdiction. “Commons” is seen as constraining because it is associated with notions of shared ownership, public governance or limitations on use.
“Commons” is sometimes also associated with the “common heritage of mankind” (CHM) concept as expressed in Article 11(3) Moon Agreement, 1979. CHM was a new concept that created a territorial status in which the Moon and celestial bodies are themselves not subject to national appropriation, but the fruits and resources of which are also deemed to be the property of mankind at large.
CHM is not limited to outer space. The 1970 UN General Assembly passed a non-binding resolution that “the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, as well as the resources of the area are the common heritage of mankind.” After the Moon Agreement, this principle was codified as Article 136 of the United Convention on Law of the Seas, 1982. Thus, to some, the high seas beyond territorial waters is a “global common” allowing freedom of navigation and access to all (an enabling concept), others may refer to the deep sea bed as a “global common” (in a constraining sense).
In 1957, after Sputnik was launched, geopolitical expediency led the only space-faring superpowers, the US and the USSR to ensure the adoption of UN General Assembly Resolutions 1721 A&B (XVI), December 21, 1961, and, thereafter, to consistently conform to its terms. All space-faring nations have continued to conform and adhere to that settled precedent. Over decades of consistent state practice, the principles of the Outer Space Treaty, 1967, have transformed into rules of customary international law. Today, outer space is a democratised domain. Over 80 countries access outer space, deriving benefits from space-based satellite services for every aspect of their national life, even though there are only 11 space-faring nations (including ESA).
India is at a threshold it has never reached before. This would be the time to play a significant part in determining the content and contours of a future international framework for the management of space resources. It must necessarily involve a close examination of the Moon Agreement 1979 (MA) which came into force in 1984. As of date, 18 states have ratified the MA (to be reduced to 17 in January 2024 after Saudi Arabia’s withdrawal comes into effect). Australia and Mexico have ratified MA and are signatories to the Artemis Accords. France and India are signatories to MA (not yet ratified) and also to the Artemis Accords.
This is a snapshot of the complexity of the issues involved. It will require a comprehensive understanding of the range of directly and indirectly applicable international law and other frameworks. It will also require the participation of all government institutions. India has had and continues to have robust international cooperation space programmes, including multilateral and bilateral engagements with advanced space powers, and with those looking forward to advancing theirs. India must now contribute towards drawing up an international space resource management framework that balances competing objectives in pursuit of the use of outer space for peaceful purposes.
The writer, partner, Dua Associates, specialises in space law
