The way forward

As more actors seek to leverage their presence in space and pursue commercial interests there is a greater need to clarify the meanings and scope of the principles contained in the OST. The principles of non-appropriation, equitable access and peaceful use are as important as ever, but there needs to be international agreement to uphold these norms and the fundamental spirit of the OST.93 Some scholars argue that extreme measures are necessary, for example, denying all property rights in space, including ownership of samples collected or resources extracted. However, such measures could deny space exploration and research advances in key technology areas, ranging from medicine to crisis management. Furthermore, governments and commercial actors are unlikely to agree to restrictive measures.94 Instead, the literature generally suggests that the principles of international space law are upheld through a variety of policy frameworks designed to protect the interests of all humankind.95

There are several ways in which the legal framework could maintain the key OST principles. These are identified as areas in need of further research, summarized in the box on the right.

93 Pershing (2019). 94 Ibid. 95 Balleste (2020). 96 Zannoni (2020).

Areas for further research

➢ Clarify the various interpretations of the principles contained in the OST, particularly relating to the nonappropriation principle, documenting a range of perspectives, including remote or minority communities. ➢ Assess the Moon Agreement as a potential foundation for an international regime to govern resource extraction in space, considering other treaties, new agreements, or governance structures. ➢ Examine the future role of the

International Telecommunication Union (ITU), identifying potential responsibilities and measures for equitable allocation of GEO positions. ➢ Understand ways to enhance dialogue via multilateral UN fora, such as the

United Nations Committee on the

Peaceful Uses of Outer Space (COPUOS). ➢ Assess other regimes that uphold the principle of non-appropriation, such as

UNCLOS, and assess their transferability to space.

The Moon Agreement provides a useful foundation for governing space exploitation.96 The MA calls for the establishment of an international regime to govern resource exploitation as it becomes technologically feasible. However, the Agreement does not offer details about what such a regime should look like.

Nonetheless, this indeterminacy could be leveraged as a strength if the MA is to be a “diplomatic signpost” for emerging space actors.97 Though the MA lacks uptake among established spacefaring countries, some of the principles around resource exploitation could prove useful. This, combined with a sui generis (“unique”) approach to property rights could enable resource extraction in space by introducing "property-like rights" which do not imply ownership, but rather, "concessions, mining licenses, prospecting rights, and certain contractual rights" towards equitable access to space resources.98

Similarly, in achieving equitable access to GEO and radio frequency bands, many scholars suggest that the ITU provides an existing framework as an independent neutral organization overseeing allocation. 99 There are some arguments for an ITU allocation system that prioritizes equatorial states in the case of clashing interests, in light of the Bogotá Declaration. 100 There is a need for further research to envisage the future role of the ITU and how international

There is a need to clarify and tighten rules to avoid a tragedy of the

commons ”

legal norms could be shaped, implemented and enforced.

The United Nations is central to the implementation of any legal framework on the governance of space. It is important that an impartial institution interprets international law and holds states and private companies to account, to prevent the fragmentation of space governance, legal uncertainty and destructive behaviors in outer space.101 The UN is best suited, with COPUOS offering a multilateral forum for outer space issues – rather the creation of an entirely new international law-making body on space governance. 102

COPUOS was established by the General Assembly in 1959, to enhance cooperation and ensure peaceful uses of outer space. The decision-making processes of COPUOS are arguably slow, as programs initiate on the basis of consensus.103 Nonetheless, the UN is advancing programs through COPUOS, including Transparency and confidence-building measures (TCBMs) to enable the peaceful and sustainable use and exploitation of resources.104 The COPUOS Legal Subcommittee is setting into motion plans for a working group on the Exploration, Exploitation and Utilization of Space Resources. 105

Channels such as these are important to promote equitable access to space and the

97 Ibid. 98 Ferreira-Snyman (2021). 99 Balleste (2020); Agama (2017); Jakhu, Ram & Karan Singh (2009) Space Security and Competition for Radio Frequencies and Geostationary Slot., Zeitschrift für Luft- und Weltraumrecht 58. 100 Balleste (2020); Jakhu & Singh (2009); Agama (2017). 101 Ferreira-Snyman (2021). 102 Ferreira-Snyman (2021). 103 Lim (2018). 104 Ibid. 105 UNOOSA (2021) The Establishment of a Working Group on Potential Legal Models for Activities in Exploration, Exploitation and Utilization of Space Resources. Committee on the Peaceful Uses of Outer Space Legal Subcommittee Sixtieth session. https://www.unoosa.org/res/oosadoc/data/documents/2021/aac_105c_22021crp/aac_105c_22021crp_22_0_html/AC105_C2_2021_ CRP22E.pdf

rule of law in space. Moreover, the United Nations is well placed to call out countries acting against the principles of the OST, moving away from unilateral interpretations of international space law and promoting universal principles.

Looking to frameworks beyond the UN, the Space Sustainability Rating (SSR), developed by the World Economic Forum’s Global Future Council on Space Technologies, offers a potential tool to encourage good behaviors in space. The SSR aims to provide scores for missions with regard to debris mitigation and alignment with international guidelines.106

Some scholars suggest adapting property regimes on Earth that uphold the nonappropriation principle, for example, the United Nations Convention on the Law of the Sea (UNCLOS) or the Antarctica Treaty System (ATS). 107 UNCLOS, particularly through the International Seabed Authority on deep seabed mining, limits claims on resources, while permitting responsible resource extraction under the scrutiny of a regulator.108 The Antarctic Treaty System also exemplifies a governance structure that enables exploration and scientific research in areas beyond a country’s sovereign territory, while maintaining good diplomatic ties.109 However, the ATS bans mining, which limits applicability to future space resource extraction. Nonetheless, further study of governance models such as these could offer promise towards upholding the non-appropriation principle in space. Beyond multilateral frameworks, there is potential for strong national leadership to encourage good behavior in the space domain. The largest spacefaring countries have geopolitical “baggage” and vested interests in space. There could nonetheless be a need for "honest brokers", who have the diplomatic acumen to mediate disagreements, ease relations and promote good behaviors. There are promising “stewards” on Earth, countries that may play a small role in space but demonstrate good governance in areas such as environmental protection and sustainability. Countries with such a positive track record include Singapore, which has a small presence in space, but could nonetheless be well-placed to lead the way and advocate for good behaviors in space.110

The rapidly evolving space domain is seeing an increase in actors seeking access to limited orbital slots. The risks are that established spacefaring countries have the technological and economic advantage, leaving other countries behind. The firstcome-first-served approach to orbital slots means that countries with the technological capabilities are incentivized to make full use of limited positions. To ensure that access to space is equitable, sustainable and peaceful, we need to build on existing principles in international law. Though the OST has not adapted to the rapidly evolving space domain, the founding principles remain as important as ever. There is a need to clarify and tighten rules to avoid a “tragedy of the commons” and to prevent the geopolitical rivalries and inequities on Earth from playing out in space.

106 World Economic Forum (2022) Space Sustainability Rating. https://www.weforum.org/projects/space-sustainability-rating 107 Wrench (2019); Rathore & Gupta (2020). 108 Wrench (2019). 109 Salazar (2015). 110 This example was discussed in workshop group 2 (see Annex).