The concept of “space resources” remains the subject of legal debate. (credit: ESA)

The (not quite) definitive guide to the legal construct of “space resources”

by Michael J. Listner
Monday, January 6, 2025

Of all the outer space ventures inspired by futurism, perhaps the most alluring is that of mining the resources within celestial bodies, including the Moon and asteroids. Indeed, real property rights are the holy grail of future visions of not only settlement but also space mining. The sticking point has been and continues to be the 1967 Outer Space Treaty, which prevents a claim of a real property interest to create an exclusive mining claim. This lack of a right to claim a real property interest creates a legal barrier that seems insurmountable unless the Outer Space Treaty is amended or withdrawn from.

This legal impediment appeared to be resolved when on November 25, 2015, the Commercial Space Launch Competitiveness Act of 2015 was signed into law after passing the Republican-held 114th Congress. Within the Act, a provision stipulated the creation Title 51, Chapter 513, of the United States Code, which creates a “right” for private individuals to extract and possess space resources from celestial bodies. Since the space resources provision was enacted, industry, academia and non-governmental organizations have postured the law as a valid interpretation of the Outer Space Treaty.

Yet, the legal concept of space resources is not widely understood and is too often conflated with mining in the domestic terrestrial setting. This essay will give the reader a rudimentary understanding of the concept of space resources and explain why the euphemism of “mining” is not consistent with or equivalent to space resources and discuss the efforts and challenges to bring into the mainstream of outer space law.

The legal underpinnings of space resources

The discussion of the theory of space resources requires a basic understanding of the relevant portions of international space law found in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) and specifically the concept of res communis.

Res communis is a concept derived from Roman property law that refers to the light and the air.[1] “In the civil law, things common to all; that is, those things which are used and enjoyed by everyone, even in the single parts, but can never be exclusively acquired as a whole, e.g. light and air.”[2] The idea behind res communis in the reference to both the Antarctic Treaty and the Outer Space Treaty is that no sovereign can extend [state] ownership much in the same way no one can extend control over the air or the light. In other words, in the case of outer space and celestial bodies, they belong to no nation. It is notable in regard to usage and passage, the high seas are considered res communis.[3] The concept of res communis is found in Article I and Article II of the Outer Space Treaty.

Article I, paragraph 1 articulates res communis through the “province of all mankind” language:

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 II continues to articulate the res communis principle in that:

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 Outer Space Treaty does not define the term “celestial bodies,” but it is accepted “celestial bodies” are any natural body residing outside of the Earth’s atmosphere. This includes everything from stars and planets to meteoroids that have not survived reentry to land on the surface of the Earth. One legal definition defines “celestial body” as “…natural objects in outer space… which cannot be artificially moved from their natural orbits.”[4]

The majority view of Article I and Article II is that property rights in celestial bodies, whether real or personal, are prohibited, including for non-governmentals. However, this is the beginning of the ambiguities in the Outer Space Treaty as there is a split whether the prohibition on the “ownership” of celestial bodies extends to the resources affixed to and within. The “consensus position” is natural resources on or within celestial bodies are not part of the prohibition because Article II does not expressly mention “resources.” This distinction is critical to support the concept of space resources removed from celestial bodies.

Two other provisions of the Outer Space Treaty are relevant to space resources: Article VI and Article VIII.[5] Article VI creates a legal duty on a government to “authorize” and “supervise” the outer space activities of non-governmental entities, i.e. private individuals. Article VI, in essence, permits a government to create a private interest in outer space activities for its citizens but requires government to authorize (license) and supervise those activities. Article VI privileges for non-governmentals in the United States were created by the Reagan Administration in National Security Decision Directive Number 42.[6] The directive in NSDD Number 42 was enacted legislatively on October 30, 1984, in the Commercial Space Launch Act of 1984 [Public Law 98-575]. It is significant to note non-governmental space activities “authorized and continually supervised” are considered national activities in the same vein of governmental space activities.[7]

The final provision of the Outer Space Treaty pertinent to space resources is Article VIII. It states:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

The effect of Article VIII is any object launched into space continues to be the property of and under the jurisdiction of the State that launched it and cuts off a right to salvage or possession via the law of finds and pure salvage as recognized by maritime law.[8] The continuing jurisdiction of Article VIII also extends to objects launched by non-governmental entities as well, but more importantly the continuing jurisdiction of Article VIII extends to personnel. This means those personnel, whether government or non-governmental astronauts, performing their space activities do so under the color of their respective governments.

One point to mention before moving on is the issue of the supposed loophole for private persons or non-governmentals in Article II. Proponents of real property rights point to the exclusion of the express prohibition of private individuals in Article II, which leads to the interpretation private individuals or other non-governmentals are not prohibited from owning celestial bodies and the resources on or within. The flaw in this interpretation is two-fold: non-governmental space activities authorized by a State are considered national activities, and non-governmentals and their space activities remain under the jurisdiction of the State that has authorized the activity. Because of this, non-governmentals cannot assert ownership over celestial objects without the sanction of the State. Thus, any claims of ownership would be imputed to the State as appropriation and would violate the non-sovereignty principle of the Outer Space Treaty.[9] This invalidates any idea of a “loophole” for non-governmentals that would permit claiming real property interests over celestial bodies.

The concept of space resources is an end-run around the prohibition of ownership of celestial bodies by either sovereign states or non-governmentals. Space resources is often conflated as “mining,” but this is inaccurate as a mining interest involves a real property interest to exploit resources within and affixed to the land. The space resources law as codified in 51 U.S.C. § 51303 of the United States Code evades the real property nature of mining and converts the “mining” of space resources into an activity that creates a personal property interest. It does so by analogizing the acquisition of space resources as an activity analogous to “harvesting fish from the sea.”

Principally, the concept of space resources relies on a legal theory that real property rights are not necessary to acquire extraterrestrial resources from on or within a celestial body. Rather the term “use” articulated in Article I, paragraph 1, of the Outer Space Treaty proposes to allow certain activities with regards to resources that do not involve a claim of real property.[10] The space resources concept theorizes while the Outer Space Treaty forbids the claim of large tracts of real property, it [the Outer Space Treaty] does permit the activity of “use”[11] so long as its confined to the area and time of an on-going recovery operation.[12] This idea of “use” is further analogized by a theory advocated by John Locke, whereby resources are reduced to possession by mixing labor with resources. Locke theorized in the case of the world’s oceans, which are recognized as res communis in terms of free passage, the labor of removing fish (the resource) from the ocean reduces the resource to private ownership through the legal principle of appropriation, i.e. “use.”[13]

This concept of “use” is further elaborated in the commentary to Luxembourg’s draft space resource law where French and Belgian law is applied to justify space resources. The commentary to Article I of the Luxembourg law references French and Belgian law to highlight the activity of appropriation where unowned natural resources (in this case space resources) are reduced to ownership by the act of physically removing them from a celestial body.[14] The commentary of the draft Luxembourg law in particular references 19th century French civil law related to mining and the writings of François Laurent, who asserts that even though the high seas could not be appropriated (res communis), the fish and shellfish within could.[15]

Applying these concepts to resources affixed to and within celestial bodies, the idea of space resources slips around the real property prohibition in Article II of the Outer Space Treaty by reducing recovered resources to personal property through the labor of removing them (appropriation) and classifying the result of that labor as the activity of “use” as articulated in Article I, paragraph 1 of the Outer Space Treaty.[16] In essence, this legal two-step bypasses the real property aspect by re-branding mining as a property interest prohibited by Article I and Article II of the Outer Space Treaty to an activity that is permitted by the Outer Space Treaty in Article I. The activity of “using” space resources is authorized through Article VI and continuing jurisdiction of that “use” is had under Article VIII.

This is the legal juncture where the interpretation of Article II that does not include “resources” in the prohibition of owning celestial bodies is critical: If resources are not considered part of a celestial body in the prohibition of Article II, private entities can “occupy” the celestial body to the extent and the duration necessary to perform the activity of “use” and acquire possession of the space resources on the celestial body. However, if Article II is interpreted so resources on and within the celestial body are considered part of the celestial body, non-governmentals cannot perform the activity of “use” to gain possession, which invalidates the theory of space resources.[17]

All-in-all the legal concept of space resources through usufructs can be boiled down to this:

Extractable minerals are not part of a celestial body, are not barred by Article II’s prohibition on appropriation and permits non-governmentals to reduce extracted resources to possession through “use” in Article I of the Outer Space Treaty.[14]

Challenges of the concept of space resources

The legal concept of space resources and its “harvesting fish from the ocean” analogy presents some challenges. One problem with analogizing “harvesting fish from the ocean” to appropriating minerals from a celestial body lies in the principle of res communis itself. Consider that “fish harvested from the ocean” will be replenished through natural processes, which means those “resources” can be “used” or appropriated by others much in the same way the light and the air can be used by others. However, minerals in outer space, including water, are finite in that they cannot be replaced through natural processes. Thus, once space resources are “used” or appropriated, they cannot be “used” or appropriated by others. This is the idea of “first possession” but still seems inconsistent with the idea of res communis.

Another question is whether 51 U.S.C. § 51303 creates “use” as found in Article I, or whether it is another legal construct called a usufruct. In its simplest terms, a usufruct is a real property interest that can simply be described as the conjoining of the right to “use” property and the right to the “fruits” of that use. In other words, while “use” grants a property interest that allows a private person to use resources belonging to the land of another to support their occupancy on the land, a usufruct allows the person to harvest the fruits of the occupied land and convert it to their own use, i.e., possess, own, transport, use, and sell, which is articulated in 51 U.S.C. § 51303. In this sense, the Mineral Code of Louisiana would consider 51 U.S.C. § 51303 as a usufruct creating a real property interest in the form of a mineral servitude.[18]

The dilemma with “use” and “usufructs” is the concept of space resources appears to equate a usufruct to “use” in Article I of the Outer Space Treaty. In the context of domestic law, such as the Napoleonic Civil Code and the Civil Code and Mineral Code of Louisiana, a usufruct is considered an interest in real property. On the other hand, in international law, a usufruct is considered an “activity” as opposed to an interest in property. In other words, in domestic national law a usufruct is a real property interest that allows an activity, while international law treats a usufruct as an activity that allows a personal property interest. It is this incongruent treatment of a “usufruct” in the international arena the theory of space resources relies upon to mask a usufruct as “use” in Article I of the Outer Space Treaty.

Another challenge arises when considering the res communis principle and the “free access” of outer space with respect to how a state will respond if the space resource operation of one of its non-governmentals is challenged by the operation belonging to the non-governmental of another state. As noted earlier, Article VIII of the Outer Space Treaty grants a nation continuing jurisdiction and control over objects and personnel launched into space. If a state were to intervene to prevent a non-governmental under the jurisdiction of another state from interfering with a space resource operation of one of its non-governmentals, an argument could be made the intervening state is exercising sovereignty over not only the space resources within a celestial body but the celestial body itself or at the very least the tract of the celestial body being utilized.[19]

A similar challenge arises with smaller celestial bodies such as asteroids and comets. If a non-governmental is extracting space resources from a small asteroid rich in mineral resources, the physical dimensions of the asteroid could implicate the entire celestial body and very well preclude non-governmentals of other states from extracting resources from the same celestial body. In this case, there is an argument that the non-governmental’s operations, which are considered a national activity, fall outside of space resources permitted under Article II and represent a real property interest in the entire asteroid. This would violate Article II, bearing in mind there is no loophole for the non-governmental to claim ownership of the asteroid in its entirety.

There is also an argument that space resources could be implicitly appropriated by the state under whose color and jurisdiction non-governmentals will be performing their extraction activities. Space resource activity while being performed by non-governmental will still be a national activity under Article VI of the Outer Space Treaty.[20] Once space resources are given economic value through the activity of “use”, those resources will contribute to the natural capital of the state under whose jurisdiction the operation is taking place per Article VIII.[21] The addition to a sovereign state’s natural capital via the activities of its non-governmentals under its jurisdiction could be considered “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” which is prohibited by Article II.

Closing thoughts

At this point the concept of space resources is a legal position driven by state interest where the United States is encouraging a customary interpretation of Article I and Article II of the Outer Space Treaty. This customary interpretation is driven bottom-up through domestic laws to affect customary international law. Customary international law legitimizing space resources was bolstered by the US with an Executive Order 13914 on April 10, 2020, encouraging support for space resources and further denouncing the Moon Agreement.[22] Further, customary support for space resources can be found with the United Arab Emirates, Luxembourg, and Japan enacting domestic space laws creating a right for space resource activity.[23]

Ambiguity and uncertainty will remain, and the concept of space resources will not be accepted as a binding customary interpretation of the Outer Space Treaty until a state practice is performed where a non-governmental extracts and possesses space resources, assigns economic value to them, and converts them. As it stands now, Japan is the only state thus far to authorize a space resource mission.[24] For its part, the US has yet to authorize such as mission as the FAA has expressly stated it does not have authority from Congress to authorize a mission, even though Title 51, Chapter 513 expressly authorizes space resource missions.[25]

The bottom-up approach of space resources has been challenged. For example, a Space Resource Working Group was established at The Hague to discuss the regulation of space resources. This NGO effort led to the creation of the Building Blocks for the Development an International Framework of Space Resource Activities, which were released in November 2019.[26] The matter was also included in the 56th Session of the Legal and Technical Subcommittee of the Committee On the Peaceful Use of Space (COPUOS), and a Space Resource Working Group was convened to create “rules” for space resource activities even before these activities begin in earnest. All in all, these activities are an attempt to subvert bottom-up rulemaking and preserve the regime of top-down rulemaking.

On the other hand, current domestic space resource laws are not the end-all for defining how space resource activity will be regulated. Indeed, the Artemis Accords consider future space resource activity and the realization that future guidance will be needed. Despite this reality, many in the “space mining” industry and space advocacy community have compared the “breakthrough” of space resources as a step towards real property rights and even conflate space resources with “space mining,” and even analogize Title 51, Chapter 513, to the Homestead Act of 1862.[27] This and other hyperbole over space resources promulgated by the media and space advocates who do not understand the nuances of space resources and the politics behind it serves only to add confusion to the issue and fuel misconceptions.

Realpolitik ensures the concept of space resources will prevail regardless of the geopolitics and legal ambiguity. This is going to happen, and the paradigm will gain acceptance in the non-sovereignty environment of the Outer Space Treaty and allow the utilization and exploitation of celestial bodies. The era of top-down governance and the “common heritage of mankind” are passing into obscurity, which necessitates that the legal underpinnings of space resources be clearly understood so that the benefits of non-governmental space activities can be fully realized. With that, the definitive guide to the legal concept of space resources has yet to be completed.

Endnotes

1. Merriam-Webster Dictionary at https://www.merriam-webster.com/dictionary/res%20communes.
2. Black’s Law Dictionary, Sixth Edition, pp. 1304-1305.
3. Many consider res communis to make outer space a “global commons” like the high seas. Yet, US policy specifically rejects that outer space is a global commons.
4. See, M Smirnoff, 1966, “Introductory Report and Summary of Discussions - Draft Resolution on the Legal Status of Celestial Bodies”, 9 PCLOS 8, quoting IISL Draft Resolution, principle 1.
5. Potentially, the planetary protection provision in Article IX will also be relevant for space resources that are returned to Earth. Steps will have to be taken to ensure space resources do not harbor contaminants biological or otherwise that could affect Earth’s biosphere. There will also be requirements to pass through customs.
6. “The United States Government will provide a climate conducive to expanded private sector investment and involvement in civil space activities, with due regard to public safety and national security. Private sector space activities will be authorized and supervised or regulated by the government to the extent required by treaty and national security.” National Security Decision Directive Number 42, paragraph III(B).
7. Bin Cheng, Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and the Appropriate State, Journal of Space Law, 14, Volume 26, Number 1, 1998.
8. In this way, Article VIII makes objects launched into space similar in principle to the legal status of federal warships, which are not subject to the law of finds or pure salvage unless they are expressly abandoned. See R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 742 F.Supp.2d 784, 793 (E.D.Va. 2010) available at http://law.justia.com/cases/federal/district-courts/FSupp2/323/724/2492882/.
9. The argument that the Outer Space Treaty is non-self-executing and thus does not apply to non-governmentals is nonsensical. The only non-self-executing provision of the Outer Space Treaty is the Article VI provision dealing with non-governmentals. That provision has been executed via Title 51, Chapter 509 and Chapter 513.
10. Taylor R. Dalton, Developing the Final Frontier: Defining Private Property Rights on Celestial Bodies for the Benefit of All Mankind, Cornell Student Law Papers, August 16, 2010, pp. 15-16.
11. The term of what constitutes “use” is much debated in the legal community and the concept of space resources has only increased the debate. Essentially, it is agreed that “using” resources in situ is acceptable under the Outer Space Treaty. “In situ” refers to the use of resources to build, maintain and support installations and activities on celestial bodies. In other words, using resources to “live off the land” is acceptable under the Outer Space Treaty.
12. Taylor R. Dalton, Developing the Final Frontier: Defining Private Property Rights on Celestial Bodies for the Benefit of All Mankind, Cornell Student Law Papers, August 16, 2010, p. 16..
13. See id.
14. Significantly, original appropriation also involves land and in fact the act of homesteading is in and of itself an act of appropriation.
15. See Draft law on the exploration and use of space resources, Commentary to Art. 1, pp. 3-6
16. 51 U.S.C. § 51303 specifically alludes to “use” in Article I, paragraph 1 in that “[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.” [emphasis added] Significantly, the US law not only allows “use” but also the sale of space resources. As noted in Footnote 11, in situ use of resources is accepted. It’s the conversion of those resources for sale that is questionable.
17. Proponents of space resources point to the fact the Outer Space Treaty is silent on the topic of whether resources on and within a celestial body are subject to the prohibition in Article II. That silence is equated to the assumption acquiring resources is not forbidden in order to create the concept of space resources. However, while the Treaty says nothing to forbid acquiring resources it neither expressly permits it, and the assumption is the Outer Space Treaty’s silence permits filling in the blanks and make the supposition extracting resources must be allowed to meet an industry end.
18. “A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La. R.S. § 31:21.
19. Proponents of space resources push back on this issue by asserting mineral-rich asteroids are so prolific that private companies will not interfere with their respective operations.
20. Bin Cheng, Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and the Appropriate State, Journal of Space Law, 14, Volume 26, Number 1, 1998.
21. Natural capital is defined as indispensable resources and benefits, essential for human survival and economic activity, provided by the ecosystem. Natural capital is commonly divided into renewable resources (agricultural crops, vegetation, and wildlife) and non-renewable resources (fossil fuels and mineral deposits). See express view that “national capital” acquired through the activities of “use” do not violate the non-appropriation principle of Article II.
22. The Outer Space Institute issued a pushback to Executive Order 13914 on April 20, 2020, called the Vancouver Recommendations. The recommendations, which incorrectly conflates “space mining” with space resources, called to activate Article 18 of the Moon Agreement and proceed to renegotiate portions of the Moon Agreement. It also called for the formation of an international body, which is mentioned in the Moon Agreement, govern so-called “space-mining”. The document was signed by members of academia and former government officials but had little if no effect on customary international law.
23. Saudi Arabia could soon join this list now that it has withdrawn from the Moon Agreement.
24. In fact, Japan has authorized another space resource mission as of December 17, 2024.
25. “The FAA does not have statutory authority to regulate space resources…” 89 FR 76714, 76721.
26. The author was a member of the Working Group and commented frequently. It is the opinion of the author the Building Blocks is a Moon Agreement-lite approach that ascribes to the flawed res nullius principal found in UNCLOS and the Moon Agreement to create a top-down governing body that is implied in the Moon Agreement.
27. The Homestead Act of 1862 [Public Law 37-64, 05/20/1862] was a sovereign grant of territory by the federal government of the United States that was formerly held by Native Americans. The Act allowed any adult citizen, or intended citizen, who had never borne arms against the U.S. government to claim 160 acres of surveyed government land. Claimants were required to “improve” the plot by building a dwelling and cultivating the land. After five years on the land, the original filer was entitled to the property, free and clear, except for a small registration fee. Title could also be acquired after only a six-month residency and trivial improvements, provided the claimant paid the government $1.25 per acre. Notably, the grant of land did not include mineral rights, which the federal government retained. See “Homestead Act 1862,”. While the Homestead Act was an example of original appropriation, the drawback to analogizing space resources with the Act is its proponents’ risk analogizing space resources with a real property interest.

Michael J. Listner is an attorney and the founder and principal of Space Law & Policy Solutions. He is a subject matter expert and practitioner in outer space law, policy and security and an authority on hybrid warfare and lawfare strategy. He is also General Counsel (pro tem) and Senior Advisor to the start-up launch company Lesath International. The views expressed here are those of the author in his personal capacity and do not constitute legal advice.

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