Privatization of Outer-Space and Ownership: ISA as a Model of Regulation for Resource Exploitation

Abstract

Outer space has always been considered as a res-communis territory, a place that cannot be claimed by any sovereign state or entity. The application of this concept to outer space never created any hurdle in any space exploration or scientific mission because nature was to explore and not to claim sovereignty or ownership. However, the recent foray of private corporations into the business of space exploration or ambitiously envisioned asteroid mining beg the question about the regulations needed for these developments. Who owns the space, or can any private entity claim ownership of a celestial body or asteroids are some of the questions which need to be dwelled upon. Answers to these questions become more pertinent with the US policy of “freedom of action” in space and passing of the “Commercial Space Launch Competitiveness Act of 2015” which provides that the company mining the asteroid will have ownership of those resources. Similarly, the US policy of promoting private corporations in outer space also brings the question about the liabilities, as the corporations are not a subject of International law and no international regulatory mechanism exists for making these private corporations accountable. Last but not least is the question of fairness, as with a greater divide between the technologically capable developed countries of the west and poor or underdeveloped countries with no capability for a space program, let alone exploiting space resources. Privatization of space will have far greater consequences on mankind, not immediately, but in the future when asteroid mining will be more economically viable. Privatization of space can be good or bad, and the answer depends on whom you are asking, however, it cannot be denied that the private corporations are looking forward to stepping into space exploration and exploitation and if such a development is left without regulation then it may lead to concentration of ‘res- communis’ territory and resources into the hands of the few corporations from the west. A similar problem existed on earth with the ownership and exploitation of the international seabed with its vast amount of minerals and other resources. To solve this dilemma, International Seabed Authority was constituted with the objective of making the exploitation of the resources fairer, especially to the developing countries, with the ‘equitable’ distribution of revenues earned, and technology transfer among the member states. Thus the International Seabed Authority and UNCLOS provide us with the model which can be used to regulate not just the private corporation but also the exploitation by other states for the benefit of mankind as a whole without hampering private innovation and could be acceptable to most of the countries.

Keywords: space law, international law, outer space treaty, private property, seabed authority