The whole world was amazed by the marvellous and spectacular incident where the Space X’s Falcon 9 rocket launched 2 astronauts into orbit, ushering in a new age of space travel and exploration where private enterprises could play a significant role and if permitted, work alongside state-owned entities to advance their own space exploration goals, possibly even colonization. While the same is a big accomplishment for Space X, it seems that this has encouraged other states to privatize their space programs as well ex. India. The Indian government recently took a historic decision to privatize their space assets to increase private parties’ participation in their space programs where the private enterprises would be able to work alongside the state-owned Indian Space Research Organisation (ISRO) in various space exploration activities.
However, the entry of private enterprises raises several legal questions with regards to any future claims of property over any celestial bodies by state and private entities. For eg. Space X is a company formed by Musk for the purpose of sending humans into space and building settlements on Mars. If the company were to make settlements on Mars in the future, whether it could claim rights over such settlements would be a legal question which the international community would have to discuss and deliberate about. Thus, the main question arises as to whether such a thing can be done according to the present international laws?
LEGALITY OF SOVEREIGNTY CLAIMS OF STATES
At present, the ‘Agreement Governing the Activities of States on the Moon and other Celestial Bodies’, in effect since 11th July 1984, lays down the principles for the regulation of the conduct of states with regards to activities on the moon and any other celestial body. The relevant provision of the Agreement clearly states that the “the moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means”. This statement is presumably based on the principle of the Earth and the solar system being shared by all and as such, belonging to no one in particular. Such a pre-supposition would definitely restrict any state from claiming sovereignty over any part of the moon or its resources as well since the same belongs to everyone and ought to be shared by all. The Agreement also states in another provision that the “States parties have the right to exploration and use of the moon without discrimination of any kind, on the basis of equality and in accordance with International Law and the terms of this Agreement”.
The ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Celestial bodies’, in force since 1967, states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. Thus, it appears that no individual state can claim sovereignty over any part of the moon or any of its resources as well.
However, in the same line of thought, it is important to address the words of Holland on “International law being the vanishing point of jurisprudence”. This statement would allow International law to be kept separate from the law due to the absence of sovereign authority and sanctions on violators. Hence, it is argued that despite existing safeguards in place, it is possible for any powerful state to completely disregard such rules and start making claims of sovereignty. These claims would obviously be dependent on the capability of such a state to reach outer space and conduct its activities. Also, the 1984 Agreement, as of January 2018, had only 18 signatory members which put no compulsion on the non-signatory states to respect and adhere to the terms of this Agreement. Despite the existence of an international community, the very absence of sovereign authority to regulate the violating state’s conduct and ineffectiveness of any sanctions imposed on it, if at all, would further the chances of such a state to get away with it. Thus, it is imperative for all states to remain on the highest state of vigilance and maintain the morality of such international principles.
LEGALITY OF THE PROPERTY CLAIMS OF PRIVATE ENTITIES
Article VI of the 1967 Treaty makes the signatory states bear international responsibility for national activities in outer space, regardless of whether such activities are carried on by the govt. agencies or private entities and also, that all such national activities be in conformity with the provisions of the 1967 Treaty. Thus, private sector is allowed to conduct such activities in space but this will be possible under government supervision. In the present case, the private sector has been placed subordinate to the respective domestic governments and under their overall supervision and control. A reasonable justification of the same could be that corporations are not accorded original personality in international law and even though given rights and duties, they are mere instruments in the hands of the state. Verdross has explained this relation as one where the “individuals/international organizations are passive members of the community of states which are simply creations of International Law, while the states are active members and possess the monopoly of the creation of international law”. Therefore, it appears that private entities, being a mere creation of the states under international law and having no individual personality of their own which would be independent of the personality of the individual states, cannot claim any rights over the moon.
However, there are many loopholes in these laws which could be exploited by a private entity to realize its own profit-based goals. This can be understood in light of the opinion of International Court of Justice(ICJ) in ‘Reparations of Injuries advisory opinion’ wherein it opined that there exist 4 elements for according international legal personality to non-state actors, namely “an independent existence, ability to possess rights/obligations in international law and the actual possession of the same and lastly, the ability to enforce these rights on the international level”.
Any private entity is capable and possesses rights and obligations under international law for space exploration as can be seen from the provisions of the 1967 treaty. They have been given the right to conduct national activities and are actually capable of possessing the same, as can be seen from SpaceX’s recent launch. Any such entity could enter into an agreement of service with its domestic government whereby it could negotiate the terms of employment and settlement of any disputes arising out of the agreement. Any breach of the terms of such agreement by the government would be make it liable to face civil proceedings in the domestic court at least or according to the terms of the agreement in some international courts, thereby making the rights of the private entity enforceable in the domestic and international courts as well. This has been seen in the case of International Investment law where the corporations have often chosen a venue of their choice for enforcement of their rights and need not exhaust their domestic remedies. Lastly, at present, the term ‘national activities’ is not clear so as to include private activities and property claims not made on behalf of a national government. This could be exploited by any private entity to lay claim to any land on the moon and due to the lack of laws on the same, they could legally get away with it and it could also serve as an efficient excuse to the derivative personality occupied by these private entities in international law.
In conclusion, while there seem to be laws to regulate the conduct of the states and private entities as well with regards to space related activities, the laws seem to be too general in nature to address this specific question of property rights/claims made by states or even private entities. The world needs to address this issue expeditiously so as to be ready to tackle any such legal problem, as and when it arises.
Dhananjai Dhokalia is a 3rd Year law Student at Amity Law School, Delhi.