As Private Companies Near Space Travel and Exploitation, New Legal Questions Arise

Graphic: NASA

By Natasha Lasky, ODP Staff Writer

To many companies, space is the new “Wild West,” a “final frontier”  of resources to be exploited for profit. To avoid a “land rush” in space, nations and space companies will need to agree on what they can claim to own or even begin to extract from outer space before their competitors beat them to it.  Currently, the United Nations’ Outer Space Treaty governs property rights in space, but because space was largely unattainable until now, there is great uncertainty about what it provides, according to Axios.  The Trump administration suggested in an economics report that property rights will be one of the biggest factors in determining the space industry’s growth.

Why this Matters:  Tesla and Amazon are working to make space travel and resource extraction for private citizens and companies possible.  Though that may still be a few years away, it is no longer beyond our horizons.  The space industry will be worth a trillion dollars by 2040, according to experts.  But what should companies be able to own and sell?  We must agree on a private property regime for space that is equitable and not just “first come, first served.”  This question is not something on which everyone will agree.  Indeed, a major negotiation is ongoing at the United Nations to decide who should own and profit from resources extracted from the high seas here on Earth.

Potential Solutions:

The Trump administration argued that “Although applications like space mining and space solar power satellites might be decades away from being profitable enterprises, it is worth laying the foundation for the emergence of future space industries now.”  They were keen to set these property rights in place for space so that commercialization and extraction could begin as soon as possible.  The Outer Space Treaty is broad and open to interpretation, and thus it remains unclear which companies or nations would have the right to claim resources mined from the moon, for example, and for how long.

In anticipation of the commercial exploitation of space resources, NASA is attempting to develop an agreement, which they call the Artemis Accords, with wealthy nations on sustainable practices for private development in space. However, China so far won’t sign onto the Accords, even though they are so far winning the race to extract resources from the Moon.  Moreover, NASA cannot enter into bilateral agreements with China without congressional approval.  This legal uncertainty may slow the development of space commerce.  However, companies like Blue Origin and SpaceX are already in the process of transporting humans to the Moon, and they could go ahead without waiting for property laws, and then it really would be off to the races, prompting a real tragedy of space commons.

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