Problems And Solutions Of Principles Of International Law For Outer Space Resources Governance

With the development of space technology,the trend of commercialization and privatization of space resource activities has gradually emerged.However,the current international space law lacks specific rules governing space resource activities,and even the interpretation of the basic principles applicable to all activities in outer space that has been universally recognized by the majority of the States is still controversial.To clarify the reasons why the existing space law principles cannot effectively govern commercialization and privatization of space resource activities is the prerequisite and starting point of the discussion for the future development of more specific and detailed international law on space resource activities.At present,the legal instrument related to the governance of space resource activities are mainly stipulated in the major space law treaties(the 1967 Outer Space Treaty and the 1979 Moon Agreement),the soft law in outer space(some Declarations and Resolutions adopted by the General Assembly,and the Building Blocks submitted to COPUOS),as well as some domestic legislation on space resource activities(such as the United States and Luxembourg).The Outer Space Treaty(hereafter OST)made during the Cold War does not contain any specific reference to space resources.Moreover,the very general and ambiguous principles OST contains adds the uncertainty to the application to outer space activities.The dispute is mainly concentrated on the non-appropriation principle,the principle of freedom of exploration and use,and the province of mankind concept.The Moon Agreement(hereafter MA)introduced the common heritage of mankind principle with the aim to provide more detailed rules for outer space activities.However,it failed to reconcile the conflicts of interest between developed and developing countries,and it didn’t establish an effective international regime to govern space resource activities.The interpretation of the non-appropriation principle found that it not only directly prohibits states to extend their sovereignty rights over outer space or its parts,but also indirectly prohibits private entities to claim exclusive property rights over space resources.Nevertheless,soft law in outer space and domestic legislation have begun to narrow the scope of the non-appropriation principle in order to pave the way for the commercial and private appropriation of space resource.The Building Blocks introduces the so-called‘priority rights’ and‘resource rights’,and encourages the future international framework to enable the mutual recognition between States of such rights.With the aim of removing international political and legal obstacles for private entities to participate in commercial recovery of space resources,the domestic legislation of the United States and Luxembourg further respectively propose that "those who recovery space resources are entitled to possession and ownership" and“space resources are capable of being appropriation",thereby attributing exclusive rights granted over space resources to private entities.The interpretation of the principle of freedom of exploration and use found that the meaning of‘use’actually includes the commercial‘exploitation’of space resources.From this perspective,this principle can serve as a legal basis in international law for private entities to carry out space resource activities to a certain degree.The freedom of exploration and use outer space has some limitations,including on a basis of equality,without discrimination of any kind,in accordance with international law,for the benefit and in the interests of all countries,as well as other limitation stipulated in the OST,such as the non-appropriation principle.However,these limitations are relatively too weak to have legally binding effects.Both the Building Blocks and the US Artemis Accords have tried to establish a safe zone for space resource activities to avoid possible harmful interference.The interpretation of the province of mankind found that the overly vague and abstract formulation of this principle has leads to the underlying meaning far greater than legally binding effects.MA further embeds the‘Common Heritage of Mankind’(CHM)concept for the purposes of effectively managing space resource activities at an international level,but it has not established an international authority,nor has it stipulated a specific benefit-sharing system for space resources activities.As for the soft law in outer space,the 1996 UNGA Declaration on Space Benefits and the Building Blocks both has introduced a new way of interpretating CHM concept by softening the two most stringent key elements of it-namely mandatory technology transfer and benefit sharing-in order to reconcile the conflict of interests between developed and developing countries in space.At the domestic law level,the US Law focuses on protecting the interests of United states citizen,and Luxembourg Law apparently opens to operators from all nationalities but it actually sets a higher threshold for operators.The domestic legislation of the US and Luxembourg deviating from the international framework does not involve sharing the benefits generated from space resource activities to developing countries.The aforementioned existing space law principles needs to be further refined from the international level to prevent the unilateral actions taken by some space-faring nations from passing national legislation to govern space resources activities,and to timely respond to the trend of commercialized and privatized space resource activities.Regarding the non-appropriation principle,it should clearly stipulate that outer space(including the moon and other celestial bodies)and space resources shall not be appropriated by any state,international intergovernmental or non-governmental organization,national organization,non-governmental entity or any natural person.No exclusive property rights shall be claimed with regard to space resources.States shall not claim sovereignty in outer space,and shall not grant exclusive rights over space resources to private entities.Concerning the principle of freedom of exploration and use,it should clarify the differences between the‘exploitation’and‘exploration and use’since the word‘exploitation’emphasizes the use of space resources for commercial purpose.Compared to the province of all mankind,CHM is a more effective tool to the governance of space resource activities at international level and to resist the adverse impact caused by geopolitics,such as the continuous expansion of the interests of space-faring nations and the anti-globalization policy adopted by the Trump administration.The best approach to refine the existing space law principles is to modify or revisit the MA.However,considering the fact that major space powers may lack the internal will or external motivation to initiate the modification of the MA,a more practical path is to follow the lead by the Legal Subcommittee of COPOUS to multilaterally reach consensus on how the existing space law principles should be interpreted to govern activities in the exploration,utilization and exploitation of space resources.Such consensus should be recorded and formulated in the form of text.COPOUS then submits the document to the UN General Assembly,and let the General Assembly adopts the document as a Resolution.With the steady improvement of space technology capabilities,China should be fully aware of the impact of the commercialization and privatization of space resource activities.China should always adhere to the multilateral dialogue model,and oppose the practices of some countries and private entities in arbitrarily deciding the ownership of space resources when the existing international space law rules are not yet complete.The non-appropriation principle can serve as a powerful international law basis for curbing unilateralism.In order to support China’s future exploration and sampling activities of the moon and other planets,China may also consider explaining the principle of free exploration and utilization in the direction of focusing on scientific exploration.At the same time,continuing to deepen the international recognition of the concept of building a community with a shared future for mankind in the field of space resource governance will help promote the development of international cooperation in space resource activities,and will also be conducive to developing China as a responsible space power at the international level.