By: Daisy Geng
Who actually “owns” the Moon, asteroids, or even a plot on Mars? The idea of claiming space territory may sound like science fiction, but it’s becoming a very real challenge in international law. Today, the private sector is leading the charge, with companies like SpaceX, Blue Origin, and emerging asteroid mining firms eyeing resources that could power the next phase of human exploration. But as the lines between Earth and space blur, the concept of sovereignty—and who gets to profit from space—is getting complicated.
The Outer Space Treaty: A Product of a Different Era
In 1967, the world agreed on the Outer Space Treaty (OST), essentially the “constitution” for space. Drafted during the Cold War, the OST declared space as the “province of all mankind” and banned national claims of sovereignty.[1] It emphasized peaceful exploration and banned weapons of mass destruction.[2] But perhaps most significantly, the treaty prohibits any nation from claiming outer space, the Moon, or other celestial bodies.[3]
Yet, in an era dominated by state actors (the U.S. and the Soviet Union), the OST had no foresight into today’s commercial ventures. While the OST is clear about barring national claims, it lacks specific language on private companies, leaving a major legal gap that commercial players are now ready to exploit.[4]
When National Laws Reach Outer Space
If international law forbids nations from claiming space territory, how can companies extract resources? The U.S. found a way around this issue in 2015 with the Commercial Space Launch Competitiveness Act, a piece of legislation that allows American companies to “possess, own, transport, use, and sell” resources extracted from space.[5] This law asserts that owning what you mine doesn’t equate to “claiming” space, sidestepping the OST’s limitations.[6]
Such laws raise ethical questions and practical concerns: Does space belong to everyone, or only those with the wealth to explore it? Should the first country to craft “space mining laws” control these resources? And as more nations pass similar laws, are we moving toward a “space rush,” with countries racing to extract resources with little regard for sustainability or fairness?[7]
Sovereignty in Space: Lessons from International Waters
Space may be the final frontier, but the United Nations Convention on the Law of the Sea (UNCLOS) provides valuable lessons on managing a shared resource. UNCLOS divides oceans into different zones, balancing rights for individual states with common interests. It even regulates seabed mining through an International Seabed Authority, ensuring that profits from mined resources are shared fairly.[8]
Some space law experts argue for a similar framework for outer space, particularly as companies move closer to extracting resources from celestial bodies. A modern treaty based on the UNCLOS model could establish a “space commons” that allows sustainable resource use while ensuring that everyone—not just the wealthiest—benefits from space resources.[9] However, a potential challenge is that space is far more complex and difficult to regulate than international waters, raising unique jurisdictional and enforcement issues.[10]
The Wild West of Jurisdictional Disputes
As companies from different countries collaborate on satellites, rockets, and potential mining operations, jurisdictional issues are emerging.[11] For example, if a U.S. company and a Chinese company partner on an asteroid mining project, which country’s laws apply? If something goes wrong, where should they resolve disputes? These questions reveal gaps in current international frameworks, as today’s space treaties provide no clear answers on how to resolve jurisdictional conflicts in outer space.[12]
Increasingly, arbitration is seen as a practical solution. The Permanent Court of Arbitration (PCA) has already created rules for space-related disputes, allowing parties to settle conflicts without resorting to international litigation.[13] However, while arbitration can be useful, it isn’t a substitute for a comprehensive legal framework, which would better address jurisdictional complexities and ensure that space exploration benefits the global community, not just a few powerful companies or countries.[14]
[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. I, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
[2] Id. at art. IV.
[3] Id. at art. II.
[4] Ram Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, 32 J. Space L. 31, 31–32 (2006).
[5] U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704 (2015).
[6] Frans von der Dunk, handbook of space law, 223–25 (Edward Elgar ed., 2015).
[7] Marcia S. Smith, Will the U.S. Asteroid Mining Law Lead to a Boom in Space Resources?, SpacePolicyOnline.com (Dec. 1, 2015), https://spacepolicyonline.com/news/will-the-u-s-asteroid-mining-law-lead-to-a-boom-in-space-resources/.
[8] United Nations Convention on the Law of the Sea, arts. 136–37, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
[9] George S. Robinson & Harold M. White, The International Legal Implications of Space Resource Utilization, 10 Int’l Law. 152, 152–54 (1976).
[10] Stephan Hobe, Space Law: Basic Legal Documents, Vol. 1, No. 3, 40–42 (2019).
[11] Carl Q. Christol, The Legal Environment for Space Enterprise, 51 J. Air L. & Com. 505, 505–06 (1986).
[12] Leslie I. Tennen, Towards a New Regime for Exploration and Use of Outer Space Mineral Resources, 88 J. Air L. & Com. 265, 270–72 (2013).
[13] Permanent Ct. Arb., Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Dec. 6, 2011).
[14] Michael Listner, Arbitration in Outer Space: A Model for Dispute Resolution?, Space News (Feb. 17, 2017), https://spacenews.com/arbitration-in-outer-space-a-model-for-dispute-resolution/.