Property, Sovereignty, and Customary Governance in Outer Space Resource Extraction

Abstract

Space technology related to extraterrestrial resource extraction has exploded. The ability to extract frozen water from asteroids or mine the lunar surface for critical minerals and water-ice is nearly viable and the potential wealth is staggering. But herein lies one of the most complicated property ownership problems—who owns these natural resources? Ownership not only includes the right to take, but also the right to exclude. As scholars have often explained, the right to exclude is the centerpiece of property rights. However, who holds these rights? And, in fact, should anyone have these rights? Space is the ultimate Ostromian commons.

This Article discusses certain challenges related to outer space resource extraction and the assertion of property rights, particularly as they relate to sovereignty and customary governance. It first reviews the major governing outer space framework, which includes the outdated U.N. Outer Space Treaty, borne out of the aggressive space race during the Cold War. Like its natural resource relation, the U.S. 1872 General Mining Law, it has not changed since its inception. And just like in the early days of mining in the U.S., participants in outer space mining and outer space resource extraction are not waiting for resolution on ownership or utilization questions.

Keywords: space, mining, extraction, property, sovereignty, outer space, international law, space law, governance

JEL Classification: K11, K32, K33