Property Rights to Celestial Resources

$10,000 quadrillion USD. That is the unfathomable estimated value of the resources within Psyche, a 280-kilometre-wide asteroid flush with valuable metals such as iron, nickel and gold.

On October 13, 2023, NASA launched a spacecraft that will begin mapping Psyche in 2029. NASA’s stated purpose for visiting the asteroid is to gain a better understanding of planetary cores, but the mission is surely of great interest to those who dream of mining Psyche’s resources.

As the spaceflight industry addresses questions of how to get to resource-rich celestial bodies like Psyche, and return to Earth with extracted spoils, a longstanding legal question has come to the forefront: can one own resources extracted from outer space?

The Constitution of Outer Space Law

The 1967 Outer Space Treaty is commonly referred to as the constitution of international outer space law and provides the most widely accepted regime for governing activities in outer space. Formed at the height of the Cold War with the purpose of averting the weaponization of space, the Outer Space Treaty has since been ratified by 114 nations, including all of the major spacefaring nations.

Article II incorporates the “non-appropriation principle” into the Outer Space Treaty and reads as follows:

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.

The “non-appropriation principle” unambiguously prohibits states from claiming sovereignty over celestial bodies. However, whether this principle extends to outer space resources after they have been extracted has been a source of great debate.

The Competing Interpretations of Article II

Those concerned about a free-for-all over outer space resources generally prefer a broad reading of Article II that would prohibit both public and private ownership of celestial bodies and any resources extracted therefrom. They argue that the unimaginability of outer space commercial resource extraction in 1967 justifies the drafters’ failure to address such issues. Further, travaux préparatoires from the negotiation of the Outer Space Treaty also suggest that the drafters had intended Article II to prohibit claims to private property rights in space.

Proponents of a liberal approach to outer space resource extraction often prefer a narrower reading of Article II and note that state practice has been to recognize property rights over extracted outer space resources. For instance, the United States government claims ownership over the 842lbs of lunar materials brought back to Earth by the Apollo missions. Domestic legislation, such as the United States’ Commercial Space Launch Competitiveness Act in 2015, and similar legislation in the United Arab Emirates, Japan and Luxembourg, recognizes private ownership rights to resources extracted from outer space.

The Need for a New Legal Framework

In recent years, the legal scholar community has preferred the narrower reading of Article II. Specifically, while most scholars and states recognize that Article II prohibits ownership of in situ property rights in celestial bodies, there is growing acceptance of private property rights in extracted resources.

The practicalities of commercial mining in outer space may push for an even narrower interpretation. Once outer space resource extraction becomes a viable enterprise, commercial entities will likely want their government to provide security over their claim to their celestial rock. Recognition of in situ property rights in celestial bodies may become necessary as a result, despite the “non-appropriation principle.”

Given technological advancements and the ever-increasing demand for valuable minerals, the “non-appropriation principle” may quickly become incompatible with the needs of outer space commerce and industry. Commercial entities are unlikely to wait long before putting their stakes in the terrain of Psyche once technology makes it possible. Spacefaring states have an impetus to revisit the Outer Space Treaty to create a modern legal framework for celestial property rights before outer space becomes the site of the next lawless gold rush.