Can you have property rights in space? Can an individual, or a private company, or a government, claim territory on the moon, or on Mars? What about asteroid mining?
The short answer is: there isn’t settled law on these questions. And nobody has actually attempted it yet, so the law is all theoretical. But given aerospace developments in recent years, the question is increasingly important. Blue Origin, SpaceX, and other private/ commercial space launch companies have publicly stated they intend to land humans on the moon or Mars, or mine asteroids for resources. Other countries’ governments are developing and launching large commercial rockets (e.g. China). Property rights in space may become very significant.
International law and treaties
One complicating but fundamental starting point is that different countries (i.e. states) have their own laws. There isn’t a single overarching legal framework, but rather just individual countries’ laws. Sometimes, multiple countries sign a mutually binding treaty and create an “international” law, but this is a fuzzy concept. Some might argue that there’s no such thing as international law, really, since there’s not a single international or world government. For that reason, it frequently may not be properly enforced. The United Nations is an example of this.
Furthermore, each country can choose to sign onto an international agreement or treaty, and not every country does – so some countries may not join the agreement, and can effectively do whatever they want.
That said, agreements and treaties among countries do exist, and are treated as binding with legal obligations. Below, I mention a few of the key treaties.
The 1967 Outer Space Treaty
Back in 1967, when the United States and the Soviet Union had competing space programs but neither had yet landed a human on the moon, a treaty was entered into among both countries and the United Kingdom. Formally known as the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” it is generally shorthanded as the 1967 Outer Space Treaty, and it forms the basis for international space law. The treaty was entered into and became effective in 1967 with the US, USSR, and UK, but as of 2021, well over 100 countries are parties to the agreement (about 111 have signed and ratified it, while another 23 have signed but not yet ratified). The United States is one of these parties.
In general, this is an arms control or “non-armament” treaty, meaning that it basically prohibits countries from putting weapons of mass destruction (including nuclear weapons) in space or establishing military bases on celestial bodies. Instead, it limits use of the moon and other celestial bodies to peaceful purposes only.
The treaty is actually fascinating and, in some respects, way ahead of its time. Key passages from Article I include:
The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.Article I, sentence 1
Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.Article I, sentence 2
There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.Article I, sentence 3
Section II discusses the principle of non-appropriation:
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.Article II
Finally, worth highlighting here, section VI of the treaty discusses international responsibility:
State Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.Article VI, sentence 1
The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.Article VI, sentence 2
It’s not really clear whether an activity like asteroid mining would be permitted under this treaty. It states that the moon and other celestial bodies are not subject to appropriation, but it also says that they must be free for exploration and use.
The Moon Agreement
This agreement applies to the moon, but also to all other celestial bodies within the solar system (i.e., everything other than the earth), and it went into effect in 1984. What’s perhaps most important to note is that as of 2021, there are only 18 countries that are parties to the Moon Agreement (and another 4 that have signed it, but have not yet ratified). None of them are spacefaring countries capable of orbital flight. This means, of course, the United States is not a party.
Similar to the 1967 Outer Space Treaty, the Moon Agreement states that the moon is not subject to any national appropriation. It says that the parties have the right to exploration and use of the moon. However, it goes further and says that neither the surface or the subsurface of the moon, or any of its natural resources, shall become property of any state, or any non-governmental organization, or any individual person. And placing any personnel, space vehicles, equipment, facilities, etc. on the moon’s surface or beneath its surface does not create any right of ownership over the moon. Again, these provisions apply to all celestial bodies, as well as the moon itself, which would include Mars and asteroids. But it wouldn’t be binding on the US or any individuals or organizations within the US.
The US Commercial Space Launch Competitiveness Act
In the US, private space launch companies started to lobby Congress to pass a law clarifying that they would be able to mine or harvest resources in space, whether from the moon, other planets, or asteroids. As a result of these efforts, Congress passed this statute in 2015. In an obvious and eye-rolling attempt to reverse engineer the law’s name to arrive at the desired acronym, it is also known as the Spurring Private Aerospace Competitiveness and Entrepreneurship (“SPACE”) Act. It expressly allows US citizens and companies to “engage in the commercial exploration and exploitation of space resources,” including water and minerals. The law states:
A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.Section 51303, Asteroid resource and space resource rights
As you might suspect, some people have argued that this US law violates the 1967 Outer Space Treaty. Right now, this is all very theoretical since nobody is actually mining or exploiting resources from space (yet). Which leads me to…
The Artemis Accords
In 2020, the Artemis Accords were signed as an international agreement between countries participating in the Artemis Program, which is the US-led program to return humans to the moon. About a dozen countries, including the US, have signed this agreement. The Artemis Accords state, in relevant part:
The Signatories emphasize that the extraction and utilization of space resources, including any recovery from the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.Section 10 – Space Resources
This is an attempt to bridge the gap between the 1967 Outer Space Treaty (which prohibits appropriation of the moon and other celestial bodies) and the 2015 US SPACE Act (which allows extraction of resources), by stating that “extraction of space resources does not inherently constitute national appropriation” under the Outer Space Treaty.
The 2015 US SPACE Act and the US-backed Artemis Accords have drawn some criticism for being too US-centric and protecting American interests in space. The bold assertion that extraction of space resources does not constitute appropriation (a violation of the Outer Space Treaty) is an interpretation of the treaty, but not necessarily the only or best interpretation. And importantly, the Accords are not really considered a “treaty” because they did not go through the United Nations’ treaty process – rather, they are just a series of bilateral agreements between the US and various other countries. In other words, they may or may not have any value in terms of being an official interpretation of the Outer Space Treaty.
In conclusion – the 1967 Outer Space Treaty is the primary international law on point here, and it is not clear whether it allows or prohibits extracting resources in space. More recent and more specific US law says that it is allowed – but this could be challenged as a violation of the international treaty.
Assuming for practical purposes that mining or extracting resources from the moon or asteroids were attempted by an individual or private company in the US, additional questions would arise. Would you be required to obtain a permit or license from the US government? If so, which agency or department would grant the license – the FAA, which generally regulates air and space flight? The Department of Commerce, which regulates economic activity? Another agency?
None of this is clear today. But these are just some of the important questions that will need to be answered as companies like SpaceX or Blue Origin expand their space launch programs over the next few years.