Introduction

Security in international relations is a value. As such, it refers to the maintenance and protection of an international status quo against potential threats that would be able to disrupt the current state of affairs (Jakhu and Pelton 2017: 269). At global level, the fundamental regulatory scheme for the protection of post-World War II international society is contained in the Charter of the United Nations, the main purpose of which is “the maintenance of international peace and security” (UN Charter, Preamble). In this respect, Article 1 of the Charter, in listing the purposes of the Organization, refers in particular to the need “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace….” Further, it is not by chance that Article 2 paragraph 3 of the Charter provides, among the fundamental principles of the United Nations, that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

Given the global character of international security, it is obvious that any threats against it will come from internal actors, such as states or other entities (e.g., terrorist groups). In most cases, these threats will be of an aggressive character. As it was rightly pointed out:

International security is… an internal problem for international society as a whole. In this context, the use of armed force is directed at what may in essence be thought as the problem of internal subversion by those who would threaten the plural and cooperative character of international society. Secession, irredentism, aggressive war, conquest, illegal occupation, mass expulsion, genocide and other actions which violate international law all threaten to disrupt the general condition of peace, order and lawfulness within international society… . (Jackson-Preece 2011: 20)

Space security is construed in the same way. State relations in the space domain are part of the general scheme of international relations and, in many instances, are able to affect state policies on Earth. The fact that space security should be faced in the context of the fundamental obligation “to maintain international peace and security” is clearly demonstrated in Article III of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967 (hereinafter “The Outer Space Treaty” or “OST”), which calls for the applicability, in outer space, of international law, “including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”

Outer space constitutes a relatively new field of activity for states that started when the first artificial satellite, Sputnik-1, was launched and put into orbit on 4 October 1957 by the Soviet Union. This achievement was just a first step in the so-called Race to the Moon between the two superpowers of that time, the US and USSR. It is therefore hardly surprising that international space law (which was mainly formed in the 50s, the 60s, and the 70s) reflected in essence the international relations of the Cold War Era and the confrontation of the two space-faring powers of this era. It is thus obvious that, in those days, space security was a game for two. However, the security concerns of the two superpowers finally resulted in an optimal balance, which was reflected in a set of fundamental principles initially formed in the context of Resolution 1962 (XVIII)/1963 of the UN General Assembly and finally incorporated in the Outer Space Treaty.

However, things are changing, and the state of space affairs is now substantially different than in the past. New space actors, mainly coming from the private sector, emerge, intending to operate in “exotic” space activities such as the extraction of asteroid mineral resources or the provision of “space tourism” services.

Ιn view of the above, space security is dependent on the establishment of a regime capable οf confronting potential threats “to the advantages that accrue for humanity from the use of space” (Jakhu and Pelton 2017: 269). The purpose of this book is to assess the multiple threats that might compromise space security in toto; however, the object of this particular chapter is to shed light on those aspects of space security that are related to the celestial bodies.

Although the space treaties repeatedly refer to “the exploration and use of outer space, including the Moon and other celestial bodies,” the term “celestial body” is not clearly defined. According to a generic definition, the celestial bodies constitute natural objects “located outside of Earth’s atmosphere, such as the Moon, the Sun, an asteroid, planet, or star.” (https://www.yourdictionary.com/celestial-body) Although several theories on the definition of the celestial bodies have emerged, some of them arguing that comets and asteroids cannot be considered as celestial bodies (Pop 2001), there is still no generally accepted definition – at least in the context of the corpus juris spatialis. However, it can be argued that the celestial bodies are distinguished from space objects, which are artificial manmade objects (Hobe 2009). For the purposes of this chapter, the celestial bodies are regarded as described in article 1 of the 1979 Moon Agreement: The Moon and “other celestial bodies within the solar system, other than the Earth.”

As stated, security is compromised by internal actors. This means that natural threats to the celestial bodies will not be dealt with in this chapter. Besides, the planetary defense issue (how to address the threat that asteroids and comets represent) is a particular problem for Earth. The presentation below will therefore focus on the situation of celestial bodies as it stands at present, in conformity with the applicable international legal framework, before examining the main causes of potential friction: the possible placement of weapons in outer space (and on celestial bodies) as well as the growing desire for the appropriation of space resources.

Celestial Bodies: The Current Status Quo

According to the legal framework in force, the current status quo of the celestial bodies exhibits some particular characteristics, which are specified below (global commons’ regime, applicability of international law, peaceful use, avoidance of harmful contamination). The maintenance of this status quo is a crucial factor in order to preserve security, as far as state activities related to the celestial bodies are concerned. However, in view of the fundamental changes that take place in space affairs, it is possible that a new balance point will be needed in the near future.

Freedom of Exploration and Use; Freedom of Access; Freedom of Scientific Investigation; Non-appropriation

The exploration and use of the celestial bodies shall be carried out for the benefit and in the interests of all countries (it constitutes a “province of all mankind”). All states, “without discrimination of any kind, on a basis of equality and in accordance with international law,” are free to explore and use the celestial bodies; further they can freely access all areas of them and, last but not least, they enjoy the freedom of scientific investigation (Article I, Outer Space Treaty, Articles 4 & 6, Moon Agreement).

Moreover, according to the space treaties, the celestial bodies are “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” (Article II, Outer Space Treaty), which means that they belong to the so-called “global commons” (spaces beyond national jurisdiction) (Ranganathan 2016: 693, UN System task team on the post-2015 UN Development Agenda 2013: 5). In view of this particular character of the celestial bodies, activities on them “must be conducted with due regard to the corresponding interests of all other States” (Article IX, Outer Space Treaty).

Applicability of International Law

Activities on the celestial bodies must take place “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding” (Article III, Outer Space Treaty, Article 2, Moon Agreement). In view of the applicability of the UN Charter in space affairs, fundamental precepts of international law, such as the prohibition of the use of force in international relations (Article 2 para. 4) or the “inherent” right to self-defense (Article 51) equally apply to the activities of States in outer space.

Use “Exclusively for Peaceful Purposes”

It is prohibited to States (parties to the Outer Space Treaty) to install nuclear weapons or any other kinds of weapons of mass destruction on celestial bodies (Article IV para. 1, Outer Space Treaty, Article 3 Moon Agreement). Further, the celestial bodies shall be used “exclusively for peaceful purposes.” In this respect, the establishment of military bases, installations, and fortifications; the testing of any type of weapons; and the conduct of military maneuvers on celestial bodies are forbidden. States are entitled to use equipment or facilities “necessary for peaceful exploration of the Moon and other celestial bodies” (Article IV para. 2, Outer Space Treaty, Article 3 paras. 1–2-4, Moon Agreement). According to the prevailing interpretation, based on state practice, “peaceful” means “non-aggressive” (Tronchetti 2015: 338–340).

Harmful Contamination Is Prohibited

Exploration of the celestial bodies must take place “so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra-terrestrial matter.” In case of activities, on the celestial bodies, which may cause “potentially harmful interference with activities of other States,” “appropriate international consultations” must be undertaken (Article IX, Outer Space Treaty, Articles 7, 8 para. 3, Moon Agreement).

Right to Visit Facilities and Equipment of Other States

A right of states to visit “all stations, installations, equipment and space vehicles on the Moon and other celestial bodies…on a basis of reciprocity,” after “reasonable advance notice” is established in the Outer Space Treaty. Said right must be exercised in such a way as to “assure safety and to avoid interference with normal operations in the facility to be visited” (Article XII).

Threats Arising from the Weaponization of Outer Space

Although it is prohibited to use the celestial bodies for non-peaceful purposes (Outer Space Treaty, Article IV para. 2), the issue is far from resolved. It is true that, up to now, those states (US, Russia, China) that possess the technical infrastructure and means to undertake military activities on the celestial bodies (for the time being, on the Moon) have avoided placing weapons in outer space (Schrogl and Neumann 2009: 87; Space Security Index 2019: 97, 132, 137). However, the current legal framework does not prevent states from placing conventional weapons in space and relevant scenarios have been developed in military circles. Thus, the general debate on the weaponization of outer space is still topical.

However, it must be stressed that military activities in outer space that would be permissible under space law must also be compliant with Article 2 para. 4 of the UN Charter. In other words, they must be of a non-aggressive character (Petras 2002: 1255). Furthermore, the “inherent” right to self-defense, pursuant to the UN Charter and the international customary law, is also valid in outer space activities, notwithstanding the limitations established by Art. IV of the Outer Space Treaty (in the context of the “peaceful purposes”).

Military applications of non-offensive character became common since the beginning of the Space Age, through the use of reconnaissance and early warning satellites. However, the term “weaponization of outer space” refers to the placement of offensive weapons in outer space, encompassing also the development of weapon systems on Earth whose mission is to destroy space objects (Tronchetti 2015: 333–334, Mosteshar 2019). Anti-satellite (ASAT) weapons stand as an example of the latter: they have already been used to destroy satellites in orbit, for testing purposes (Kyriakopoulos 2015: 599). Further, according to existing scenarios, space devices can be used in order to destroy targets on Earth (e.g., use of space for missile interception – Space Security Index 2019: 132), while in addition cyberattacks against satellites is a matter of concern. The situation is made yet more complex by the “dual-use” nature (civil/military) of most space systems (Lyall and Larsen 2018: 448).

Prevention of an Arms Race in Outer Space

This item was in the Agenda of the Conference on Disarmament (CD) since the early 80s. In 1985, CD mandated a committee especially set up for this purpose to identify and examine issues relevant to the prevention of an arms race in outer space (PAROS), such as the legal protection of satellites, nuclear power systems in space, and various confidence-building measures. It is worth noting that the United States clearly opposed to the mandate of the committee, opting for direct talks with the Soviet Union.

In 2008, China and Russia jointly introduced to the Conference on Disarmament (CD) a draft convention on the prevention of the installation of weapons systems in outer space. The draft treaty, while it recognized that “prevention of the placement of weapons in outer space and of an arms race in outer space would avert a grave danger for international peace and security,” proposed a broad definition of “weapons placed in outer space” by comprising in its scope any such weapon that “orbits the Earth at least once, or follows a section of such an orbit before leaving this orbit, or is permanently located somewhere in outer space.” It is thus obvious that weapons that could have been placed on the celestial bodies were brought within the field of application of the draft treaty. This approach was further confirmed in the wording of Article II of the draft, pursuant which states undertook “not to place in orbit around the Earth any objects carrying any kinds of weapons, not to install such weapons on celestial bodies….”

On 10 June 2014, Russia submitted to the CD an updated draft of this Convention (Draft Treaty on the Prevention of the Placement of Weapons in Space, the Threat or Use of Force Against Space Objects, PPWT). This revised draft further established the obligation for states “Not to resort to the threat or use of force against outer space objects” of other states (Article II). Such objects can be, inter alia, “permanently located …on any celestial bodies other than the Earth” (Article I).

Through recurring resolutions, the General Assembly, recognizing the importance of the Transparency and Confidence-Building Measures (TCBMs), has consistently urged the states members to “contribute actively to the objective of the peaceful use of outer space and of the prevention of an arms race in outer space” (A/RES/74/32, 12.12.2019).

Transparency and Confidence-Building Measures in Outer Space Activities (TCBMs)

In 1990, the General Assembly requested the Secretary-General, with the assistance of a group of governmental experts, to carry out a study on different confidence-building measures in outer space. That group delivered its report in 1993 (A/48/305) (Takaya-Umehara 2010: 1301).

In 2011, the UN General Assembly further asked the Secretary-General to set up a “Group of Government Experts” (GGE) to conduct a TCBM survey (A/RES/65/68). The GGE submitted its Report to the Assembly on 29.7.2013 (A/RES/68/189). In this Report, the GGE proposed a set of TCBMs in outer space, including the proposal to establish coordination between United Nations Office for Disarmament Affairs (UNODA), United Nations Office for Outer Space Affairs (UNOOSA), and other appropriate UN entities. Among the measures proposed, the following could be of particular importance with respect to the subject matter of this chapter:

  • Exchanges of information on the principles and goals of a State’s outer space policy

  • Exchanges of information on major military outer space expenditure and other national security space activities

  • Exchanges of information on forecast natural hazards in outer space

  • Voluntary familiarization visits

  • Expert visits, including visits to space launch sites, invitation of international observers to launch sites, flight command and control centers, and other operations facilities of outer space infrastructure

  • International cooperation

  • Consultative mechanisms

  • Outreach measures

  • Measures of coordination

The General Assembly further encouraged the implementation of the TCBMs. On 5 December 2013, with Resolution 68/50, after having reaffirmed that “preventing an arms race in outer space is in the interest of maintaining international peace and security and is an essential condition for the promotion and strengthening of international cooperation in the exploration and use of outer space for peaceful purposes,” the Assembly encouraged Member States to review and implement, “to the greatest extent practicable,” the proposed TCBMs, “through relevant national mechanisms, on a voluntary basis and in a manner consistent with the national interests of Member States.”

Of course, said measures are nonlegally binding voluntary measures. Nevertheless, as it was stated in the GGE Report, “such measures can augment the safety, sustainability and security of day-to-day space operations and can contribute both to the development of mutual understanding and to the strengthening of friendly relations between States and peoples.” Further, the importance of the said TCBMs for the maintenance of space security (and, in particular, for preserving security with respect to celestial bodies) is explicitly recognized in the Report, in its paragraph 31: “In general terms, transparency and confidence-building measures for outer space activities should be aimed at increasing the security, safety and sustainability of outer space. Particular attention should be given to the development and implementation of voluntary and pragmatic measures to ensure the security and stability of all aspects of outer space activities.”

In 2017, a new GGE (“on further practical measures for the prevention of an arms race in outer space”) was established pursuant UNGA Resolution 72/250 (24.12.2017), in order to “consider and make recommendations on substantial elements of an international legally binding instrument on the prevention of an arms race in outer space, including, inter alia, on the prevention of the placement of weapons in outer space.” The Group met in two sessions, the first from 6 to 17 August 2018 and the second from 18 to 29 March 2019. However, no consensus was reached on a substantive report (A/74/77, Note by the Secretary-General).

Following the aforementioned resolutions of the General Assembly, a European Union initiative took the form of a Draft International Code of Conduct for Outer Space Activities. Having noted, in its preamble, the importance of preventing an arms race in outer space, said code also proposed TCBMs, in order to “prevent confrontation and foster national, regional and global security and stability.” General Principle 28 of the Code emphasized “the responsibility of States, in the conduct of scientific, civil, commercial and military activities, to promote the peaceful exploration and use of outer space for the benefit, and in the interest, of humankind and to take all appropriate measures to prevent outer space from becoming an arena of conflict.”

Threats Associated with the Evolution of Space Activities on Celestial Bodies: The Space Resources Exploitation Issue

Over the last few years, there has been a great deal of talk about the development of activities related to the exploration, exploitation, and utilization of outer space resources. This is a space activity for the future, as it requires the development of relevant technology as well as the mobilization of significant financial resources in order for such a challenging adventure to be able to have a sustainable future. Moreover, important security issues are raised.

In the aforementioned context, new space actors emerge, mainly coming from the private sector and intending to operate in areas that a few years ago would be classified as “exotic.”

It is generally accepted that the term “space resource utilization” encompasses activities into Earth orbits, in situ resource utilization (ISRU), as well as the commercial appropriation of space natural resources (“space mining”). Earth orbits are outside the thematic area of this chapter. ISRU is the collection, processing, storing, and use of materials encountered in the course of human or robotic space exploration that replace materials that would otherwise be brought from Earth to accomplish a mission’s critical need at reduced overall cost and risk (Sackstender and Sanders 2007). ISRU, provided it is compatible with article IX OST, constitutes an activity that is in conformity with article I paragraphs 2 and 3 of the Outer Space Treaty, as it is associated with the freedom of use, exploration, and scientific investigation of outer space and, in principle, does not constitute appropriation. However, in due time an ad hoc regulation of ISRU could help to avoid tensions, if such use is to take place by numerous users in a common area on a celestial body. Thus, it is the commercial exploitation of space resources that will be discussed in further detail.

Extraction and Appropriation of Space Resources: Security Issues

The National Aeronautics and Space Administration (NASA) claims that there are approximately 100,000 near-Earth objects, and a great number of them potentially contain water and important minerals, such as nickel, cobalt, and iron. However, is “space mining” feasible, with today’s standards?

On 6 August 2014, ESA’s orbiter “Rosetta” arrived at Comet 67P/Churyumov-Gerasimenko and the lander “Philae” landed on the comet on 12 November 2014. On 8 September 2016, NASA launched OSIRIS-REx, in order to reach the asteroid Bennu and return samples in 2023 (https://www.nasa.gov/osiris-rex). These experimental missions clearly pave the way for the commercial exploitation of celestial bodies (comets, asteroids, planets) in the near future.

During the Cold War, the competition of US and USSR for the “conquest of outer space” resulted in a set of fundamental principles, first enshrined in UNGA Resolution 1962 (XVIII) of 13 December 1963 and again in the Outer Space Treaty of 1967. In this context, the balance over potential claims for the existing “wealth” in outer space led to the adoption of the non-appropriation principle. At that time, of course, the technology available did not allow for the exploitation of space resources. However, the situation is now changing drastically, and it is quite possible that in the near future there will be intense competition among states for the appropriation of space resources. It is therefore obvious that, in this area of activity, international security must be strengthened. This obviously requires a global space resources management regime, since any unilateral actions are likely to cause friction between the states concerned. Such a regime should take into account the existing fundamental principles of international space law, given that states do not contest their acceptance.

Applicable International Law

With respect to the exploration and exploitation of outer space, the lex lata provisions are Article I, II, and III of the Outer Space Treaty. Article I provides for the freedom of exploration and use of outer space, including the Moon and other celestial bodies, and for the freedom of access to all areas of celestial bodies. Article II further establishes the non-appropriation principle while, pursuant Article III, activities in the exploration and use of outer space, including the Moon and the celestial bodies, shall be carried on “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”

As has been said, there is no specific, ad hoc legal framework for the administration of the space resources exploration, exploitation, and utilization. Nevertheless, the Moon Agreement, although poorly ratified, establishes such a regime, as laid down in Article 11:

  • 1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

  • 2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

  • 3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person…

  • ……

  • 5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

However, it is obvious that, for the majority of States that have not yet ratified said instrument, the international norms applicable to the exploration and exploitation of outer space are the aforementioned provisions of the Outer Space Treaty of 1967. It therefore follows that the fundamental principles of international space law in force rather advocate a collective exploitation regime of the resources on the Moon and other celestial bodies, at least in principle.

National Approaches to Space Resource Utilization

United States: In the United States, the commercialization of outer space was encouraged by the U.S. Commercial Space Launch Act of 1984, according to which “the general welfare of the United States requires that the Administration seek and encourage, to the maximum extent possible, the fullest commercial use of space.” At that time, the Act faced only unmanned launch activities, as there was still no question about human space flight. Further, the Act also directed the Federal Aviation Administration (FAA) (through delegations) to encourage, facilitate, and promote commercial space launches and reentries by the private sector, including those involving space flight participants (§ 50903).

On 25 November 2015, the President of the United States signed the U.S. Commercial Space Launch Competitiveness Act (H.R. 2262). As far as space mining is concerned, the important part of said Act is its Title IV “Space Resource Exploration and Utilization.” According to this part, emphasis is made to the promotion of the right of U.S. citizens “to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with such obligations and subject to authorization and continuing supervision by the federal government.” Furthermore, “A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.”

It follows that under said Act (in other words, by a unilateral act), U.S. citizens are explicitly entitled, inter alia, to “possess,” “own,” and “sell” asteroid resources; thus the Act explicitly confers to U.S. citizens property rights to resources in outer space, which is in sharp contrast with the principle of non-appropriation enshrined in article II OST.

In the light of this Act, some experts have advanced arguments in favor of the permissibility of space resource utilization/appropriation. However, the prevailing view on the exact meaning of Article II is that the non-appropriation principle prohibits both the exercise of sovereign rights (by states) and private appropriation (by nongovernmental entities) (Freeland and Jakhu 2009: 50). This conclusion is further strengthened by the clear wording of Article 11 paragraph 3 of the Moon Agreement, according to which “Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”

In this respect, it is worth mentioning that the question of private property claims in outer space has arisen before U.S. courts in the past, when an individual (Gregory Nemitz) claimed parking fees from NASA regarding use of his own asteroid (!). However, the claim was dismissed on the grounds that the Outer Space Treaty did not permit appropriation of private property. In addition, both NASA and the U.S. State Department rejected the claim, thus adopting a broad interpretation of the non-appropriation principle.

Luxembourg: Luxembourg adopted a law on the exploration of space and the use of space resources in 2017 (Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace). Article 1 of said law states that “space resources are capable of being appropriated,” which means that extraction companies will have ownership on the space resources that they extract. Further, pursuant Articles 2–4, Luxembourger corporations or European companies that have their registered office in Luxembourg may extract space resources for commercial use after obtaining approval from the Government of Luxembourg. Again the compatibility of these provisions with the non-appropriation principle is highly questionable.

The Resources’ Issue Inside the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS)

Since 2017, the Legal Subcommittee of UNCOPUOS (LSC) has included, as an item in its agenda, a “General exchange of views on potential legal models for activities in the exploration, exploitation and utilization of space resources.”

The discussions inside the LSC as well as the practice of states have shown that, at present, there is no consensus among states on the legal regime that should govern the resources issue.

During the 58th session of the LSC (2019), Belgium and Greece submitted a common proposal/working paper (A/AC.105/C.2/L.311/4.3.2019), entitled “Proposal for the establishment of a working group for the development of an international regime for the utilization and exploitation of space resources - Working paper by Belgium and Greece.” Said document highlighted the principles of international space law which should govern the future exploitation of the resources of the celestial bodies, in particular:

  • That the exploration and use of outer space is a field for all of Humankind

  • That such exploration and use is regulated by international law

  • That the space treaties require an enhanced international cooperation

As for the impact of the resources’ issue on the maintenance of international security on celestial bodies, the working paper mentioned the following (paragraph 16):

The need for an international legal regime for space resource exploitation also arises from the fact that national approaches to space resource exploitation are bound to result in conflicts between competing players, if left to evolve on their own without international guidance. Hence, even if there is no legal objection to States interpreting at will their international obligations under the Outer Space Treaty when regulating space resources, there is still a clear need for an international institutional framework to regulate competing activities. In order for such a framework to be effective, it would have to be focused on the main purposes described in article 11, paragraph 7, of the Moon Agreement, the value of which is greater and goes beyond any views on the ratification of the Moon Agreement. Those purposes include the following: (a) the orderly and safe development of natural resources from outer space; (b) the rational management of those resources; (c) the expansion of opportunities in the use of those resources; and (d) an equitable sharing by all States in the benefits derived from those resources, whereby 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 outer space, shall be given special consideration.

Based on these principles, the working paper proposed the creation of an ad hoc working group within the framework of the LSC, having as mandate to investigate the aspects and questions raised with respect to the future use and exploitation of space resources, as well as the preparation of a report. Nevertheless, said proposal did not reach consensus inside the Legal Subcommittee. Instead, the LSC adopted a compromise proposal by the Chair, according to which scheduled informal consultations were to be held at the next session of the Subcommittee, in 2020.

During the 62th session of the COPUOS (2019), a relevant proposal was submitted by the United Arab Emirates (A/AC.105/2019/CRP.17/19.6.2019). The proposal recognized “the importance of establishing a working group that serve as a platform to create a unified strategic conversation among Member States” and considered that said working group “will lead the discussions towards the development of a recommended set of principles governing Space Resources Utilization activities.”

The Hague International Space Resources Governance Working Group

Beyond the discussions that take place in the context of the COPUOS, The Hague International Space Resources Governance Working Group is another forum that examined the space resources’ issue. The Working Group was established in 2016, in order to assess the need for a governance framework on space resources, and consists of members as well as observers that represent governments as well as industry, academia, science, international organizations, NGOs, and the civil society. Its mandate was to identify and formulate “building blocks for the governance of space resource activities as a basis for negotiations on an international agreement or non-legally binding instrument.” The Working Group adopted the final text of the building blocks on 12.11.2019. According to the proposed blocks, the objective of an international framework (“consistent with international law”) should be the creation of “an enabling environment for space resource activities that takes into account all interests and benefits all countries and humankind.” In this respect, the international framework should propose relevant recommendations and promote “the identification of best practices by States, international organizations and non-governmental entities.” It must be stressed that the potential impact of the space resources’ utilization issue for the maintenance of space security is recognized in the Building Blocks: According to the proposed Principles, the future international framework “should be designed to: … prevent disputes arising out of space resources” and “should provide that …space resources shall be used exclusively for peaceful purposes.”

Of course, the aforementioned concerns do not mean that commercial activities in outer space, of a private nature, should be discouraged. Such activities are clearly dictated by a new state of affairs in outer space and everything indicates that they are about to expand in the near future. Nevertheless, in the light of the desire of some states to put the famous “use of outer space” concept in a business perspective, it seems that current international space law might prove insufficient in this respect. This deficiency in the legal field can negatively affect international security with respect to outer space, including the Moon and other celestial bodies.

It must also be kept in mind that other important issues for an effective and secure commercial exploitation of outer space, in general, and the celestial bodies, in particular, − such as the protection of the space environment or the establishment of an effective space traffic management system – should also require, in the near future, the intervention of states through the undertaking of appropriate international action. What is more, new concepts emerge in space affairs: the long-term sustainability of outer space activities and the Space 2030 Agenda constitute additional factors and goals that push toward a rational and equitable use of outer space resources, which cannot be achieved through unilateral initiatives: an interesting model, in this respect, could be found in the International Telecommunication Union (ITU) Constitution, which dictates the “rational, equitable, efficient and economical use of the radio-frequency spectrum by all radiocommunication services” (Articles 12, 44).

Conclusion

Space security is part of a broader security scheme in international affairs, the maintenance of which constitutes the fundamental purpose of the UN Charter. This requirement to maintain international security also applies in the context of space activities. In particular, the security of the celestial bodies presupposes the maintenance of a status quo defined by the current international legal framework. Under this framework, the celestial bodies must be used exclusively for peaceful purposes and constitute global commons, as they are not subject to “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” What is more, the applicable norms with respect to activities on the celestial bodies are of international character, pursuant the obligation of states to “carry on activities in the exploration and use… [of] the Moon and other celestial bodies in accordance with international law, including the Charter of the United Nations.”

Although up to now it has been respected by states, said legal status of the celestial bodies does not seem to be fully adequate. The placement of weapons in empty space as well as on celestial bodies – despite their exclusively peaceful character – constitutes a threat which has preoccupied the international community for a long time. So far, the discussions and deliberations within the framework of the Conference on Disarmament have not been successful in adopting a binding international instrument, as negotiations for the adoption of a treaty on the prevention of the placement of weapons in outer space have failed thus far. This is due to fact that national security concerns are pushing some states to keep the debate on the placement of weapons in outer space open. At present, the adoption of voluntary transparency and confidence-building measures as well as the insistence by the General Assembly on the reference to the issue of the prevention of an arms race in outer space demonstrates that a consensus has already been formed within the international community on the need for multilateral action on this issue.

The growing desire of states and private actors to plan a commercial exploitation of the resources of the celestial bodies, once technology makes this feasible, can also be a source of frustration. Some states have already adopted national legal frameworks that regulate a unilateral exploitation of these resources, despite the international obligation of non-appropriation of the celestial bodies. On the other hand, the only existing collective exploitation regime is provided at present by the Moon Agreement, which has not been universally accepted by states. Consequently, a landscape is being formed in the context of which competition for space resources could trigger tensions and conflicts among states. It is worth mentioning that there are already deliberations in international fora (mainly at the COPUOS, but also in the context of The Hague Group) on a potential regulatory model of international character, despite disagreements as to its particular characteristics. Thus, the development of an international legal framework that will govern the commercial exploitation of space resources, ensuring, at the same time, a rational and equitable use of them in accordance with the spirit of Article I of the Outer Space Treaty, is a matter of security.