The Intersection of Space Law and Human Rights: Advocating for Equitable Access in Space Exploration in the Era of Astro-Imperialism

Introduction

The recent comments by Donald Trump, which echo the ideas of “manifest destiny,” have once again thrown light on the crucial issue of space exploration and resource exploitation—issues that could lead to a new form of hegemony if not addressed. This concern is further exacerbated by the rapid privatization and militarization in outer space, and the close ties between Elon Musk and Trump, which could potentially usher in an era of “astro-imperialism.”

Under the Outer Space Treaty (“OST”), space is designated as “province of all mankind”, meant to be regarded as a global common. In practice, however, this is far from true, as only a handful of countries have the technological and financial capacity for space exploration and, the perpetuation of this inequity by the space-faring states for space exploration goes against the very principle of equality enshrined in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. 

Erosion of Common Heritage

The US Commercial Space Launch Competitiveness Act is a clear example of how the principles envisaged under the OST are being derogated. The act through §51302 allows “Commercial exploration and commercial recovery” of “Space Resources” by U.S. citizens and companies. Additionally, it institutionalises the commercialisation via Title IV, which establishes the Office of Space Commerce. This, along with other measures such as Executive Order 13914, directly contravenes the OST’s principle of non-appropriation embodied under Article II, which states that outer space is “not subject to national appropriation by claim of sovereignty, through use or occupation, or by any other means”. Following this, other nations, such as Luxembourg, Japan, have also enacted laws that permit or express their intention through policy documents to permit commercial exploitation of space resources. This adds to the worrying trend in which opinio juris (states’ legal convictions) is slowly shifting away from and eroding the very fundamental pillars of the OST. 

In addition, programs such as the Artemis Accords (“Accords”)—drafted primarily by the United States (“US”) and signed by an increasing number of nations—continue to solidify this trend. While the Accords purportedly are "grounded" within the OST and on the surface reflect international solidarity in the realm of space exploration, their unilateral construction without international consultation and focus on commercial interests violates the principle of non-appropriation and shows the overt inherent hypocrisy in their creation. This approach of institutionally commercialising space marginalises nations lacking advanced space capabilities and risks creating a geopolitical landscape where space resource exploitation becomes a tool of national power and economic dominance.

Empirical data adds weight to suspicions that the basic principles of OST have been progressively sidelined. Analysis of 1,042 space configurations has uncovered that citations to commons-related principles—like the "common heritage of humankind," "province of humankind," and "common interest of humankind"—occur in only about 2% of these agreements. The provisions of “Global North” countries display a remarkable aversion to including such wording; for example, a mere 1.4% of U.S.-based organizations deals mention these principles. Even other leading space powers such as Russia, China, and Japan have similarly low rates of about 3-4%. On the other hand, lower GDP per capita countries such as Kenya and Nigeria introduce a commons approach in 19.6% and 22% of their provisions, respectively. Additionally, there has been a dramatic decrease over the years, from 3.8% of agreements in the 1960s and 4.6% in the 1970s to a paltry 0.5% in the 2010s, and it is conspicuously absent in agreements executed after 2014.

This creates a clear bi-modal world order where the Global South gets stuck with the short end of the stick in their attempts to uphold the values and principles outlined in the UN Documents, while the “developed” states enjoy the fruits of space exploration. 

Space Exploration as a Human Right? 

Given how the international community has strayed from the principles outlined in the foundational outer space documents, it has become clear that there is a need to change course and rethink the idea of outer space exploration and resource exploitation from a different lens. When we look at space in line with the idea of “communal goods”, serious questions arise about human rights and how they apply to shared global resources. In recent years, environmental sustainability and ocean governance have increasingly been viewed through the lens of human rights—especially with the recognition that access to a clean environment is fundamental to human well-being. The Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (“BBNJ Treaty”),  promotes fair access to marine genetic resources and encourages scientific collaboration between the Global North and South to protect communal goods like the ocean from being monopolised by wealthier, technologically advanced nations. Legal scholars have emphasised the “human right to science,” arguing that participation in scientific progress should not be a privilege enjoyed by a few but a fundamental right that safeguards other essential rights, such as the right to a healthy environment.

Right to Science 

This idea is reinforced by Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (“ICESR”) and, Article 27 of the Universal Declaration of Human Rights (“UDHR”), that recognises every individual’s right to  “enjoy the benefits of scientific progress and its applications” and to share in “scientific advancement and its benefits”, respectively. There has been remarkable progress made in the advancement and expansion of this right, as can be seen, for instance, in the 2024 Special Rapporteur’s report to the UN Human Rights Council (“UNHRC”) on the Right to participate in science called for the imposition of additional obligations on the State and recognised the need for a “wide, inclusive and decolonized understanding of science”. 

Moreover, progress had been made by another UNHRC Report, which stressed the private sector making the right to science a priority through their CSR initiatives in order to put forth open access to scientific knowledge and also highlighted the need to conduct scientific research with countries and communities that are the most vulnerable. However, owing to governments and research institutions’ increasing prioritisation of commercial interests and geopolitical competition, this right has been substantially undercut, aggravating the concerns of “restrictions resulting from the privatization of science” highlighted in the Special Rapporteur’s report. The more inclusive interpretations of the right to science stress the need for fairness and justice, which empowers all, including communities from developing and underdeveloped nations.

In light of this, the conversation around communal goods and the right to science should extend beyond our planet, applying even to outer space. Like the ocean, space is a global commons, and while the “third generation” human rights have been widely recognised to extend to oceans, the same is not the case for outer space, which is dominated by a handful of technologically advanced countries and private corporations. The commercialisation of space, through projects such as asteroid mining and lunar colonisation, is widening the gap between nations that have access to space and those that do not. Just as the BBNJ Treaty seeks to ensure fair access to ocean resources, space law must evolve to guarantee equitable benefits of space exploration.

The Way Ahead 

The right to science is about more than just accessing discoveries—it is about having a voice in shaping the future of science, whether in the deep sea or the vastness of space. By fostering fair collaboration, inclusive policymaking, equitable distribution of benefits, and by implementing the right in its letter and spirit, we can ensure that space remains a frontier for collective progress rather than exclusive exploitation.

The BBNJ for instance explicitly addresses the issue of equity by mandating “Fair and Equitable Benefit Sharing” under Article 14 while the scope of the same is limited to Marine Genetic Resources, parallels can be easily drawn with Outer Space resource exploration, owing to the technological capacity requirements inherent in both and, the designation of both these as Global Commons. The incorporation of similar provisions for dealing with Outer Space Resource exploration would allow for the rampant capitalistic and self-centred commercialisation to slowly turn into a system where such benefits can accrue for all. 

Conclusion 

The increasing disparities in access and benefit-sharing can be addressed by presenting space exploration as a human right under the right to knowledge. Treaties such as BBNJ and other lessons learnt from ocean governance address establishing an egalitarian legal arrangement in the fight against monopolization by countries and bulk industries. Instead of using space for economic and geopolitical-led domination, equal cooperation in research, technology transfer, and inclusive legislation would ensure that space remains a global common to be shared. Equity, sustainability, and collaboration are the bedrock upon which we must build the future of space exploration, ensuring every citizen benefits from it, rather than only the affluent and powerful.

Thus, lessons from the law of the sea and the BBNJ Treaty suggest that a strong and binding legal framework is needed to promote fair research partnerships, knowledge-sharing, and technology transfer in space exploration—ensuring that scientific progress benefits everyone, not just the wealthiest or most powerful.