3.1 Introduction
The previous chapter examined whether the extraction, utilization, and exploitation of natural resources in outer space are permitted under the international legal framework governing space activities, with a particular focus on the implications of the non-appropriation principle and the freedom to use space. It was found that the exploitation of natural resources, including for commercial purposes, does not as such breach the non-appropriation principle, but may violate the principle if conducted in certain ways.
If exploitation of natural resources in outer space and on celestial bodies commence, one fact has to be recalled: A governing framework for the mining of natural resources in space does not presently exist.(1) And just to recall: The drafters of the Moon Agreement (n. 24) saw the necessity of governing the exploitation of natural resources when it was about to become feasible, cf. Article 5. Instead, these activities fall under the broader umbrella of the space treaties and general international law. This is an issue, because space resource activities – and frankly also other upcoming space activities – necessitate a clear regulation, which international law does not provide at this time. Recent views have in this regard been expressed in the UNCOPOUS, revealing a concern for the lack of such regulation, thus substantiating the reality of this issue.(2) Draft report: IV. Status and application of the five United Nations treaties on outer space, and ways and means, including capacity-building, to promote their implementation, paragraph 17. A/AC.105/C.2/L.329/Add.3. Available online: https://www.unoosa.org/oosa/oosadoc/data/documents/2024/aac.105c.2l/aac.105c.2l.329add.3_0.html. Last accessed May 14, 2024.
Activities in space are at the mercy of the extreme environment they are conducted in. They are ultra-hazardous. The breach of an obligation may impose responsibility on that State, which can include reparations for damages.
Additionally, States are also liable for damages caused by lawful activities. The Liability Convention of 1972 [LC] provides special rules in this regard.(3) Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187, adopted in the General Assembly in 1971, entered into force September 1972. For damages caused to the surface of the Earth and in the atmosphere, States are absolutely liable.(4) Ibid. Article II. For damages caused in outer space, liability is assigned only if fault is proven to be the cause of damage.(5) Ibid. Article III. The involvement of non-governmental entities further complicates the legal landscape, raising intricate issues about the extent of State responsibility for private companies under their jurisdiction.
State obligations are often categorized into 'primary' and 'secondary' rules, a distinction introduced by ICJ Judge Roberto Ago in his work with the International Law Commission (ILC).(6) Crawford (2019), 524. Primary rules establish specific obligations of States, while secondary rules address the consequences of breaching or neglecting these obligations.(7) Ibid. Some refer to this categorization as a somewhat artificial but useful tool when analyzing a legal framework.(8) Scarlett O'Donnell, International responsibility for activities in outer space in the modern space age : article VI of the Outer Space Treaty in the context of international space law and public international law. Lund University, Faculty of Law; 2023, p. 106.
The research questions for this chapter are:
What key obligations does the Outer Space Treaty [OST] establish for States regarding the exploitation of natural resources in outer space?
What are the consequences of breaching these State obligations?