Outer Space and International Geography Article II and The Shape of Global Order
Outer Space and International Geography Article II and The Shape of Global Order
Outer Space and International Geography Article II and The Shape of Global Order
P.J. BLOUNT*
INTRODUCTION
I
n an 1898 serialized science fiction novel, Thomas Edison travels to
space in true Victorian fashion, taking with him a menagerie of
scientists from Earth including geologists and miners to go and
attack Mars. As their adventures ensue, the intrepid group of explorers
finds an asteroid made of gold that is actively being mined by the
Martians:
The more we saw of this golden planet the greater became our
astonishment. What the Martians had removed was a mere
nothing in comparison with the entire bulk of the asteroid. Had
the celestial mine been easier to reach, perhaps they would have
removed more, or, possibly, their political economists perfectly
understood the necessity of properly controlling the amount of
precious metal in circulation. Very likely, we thought, the mining
operations were under government control in Mars and it might
be that the majority of the people there knew nothing of this store
of wealth floating in the firmament.1
Ever since this publication, one of the ongoing themes found in both
science fiction and science fact is a human desire to access that “store of
wealth floating in the firmament.” Interestingly, this early work recognizes
not just the technical difficulties with extracting resources from space but
also the governance obstacles of such activities.
Today, these same difficulties and obstacles remain despite the
tremendous advances in both technology and governance. Setting aside the
technical issues, the current challenge for both law and policy flows
95
96 New England Law Review [Vol. 52 | 2
primarily from Article II of the Outer Space Treaty, which prohibits states
from “appropriating” space, the Moon, and other celestial bodies. The
problem is that Article II is notoriously ambiguous in its wording and its
implications for property rights, both in terms of real property and in terms
of chattel property over extracted space resources. While this ambiguity
has been a boon to scholars looking for tenuous situations to write articles
on, it is now being cast as an obstacle for an emerging group of private
enterprises that aim to extract and to use for commercial purposes the vast
resources that are floating in the firmament. This article will delve into this
ambiguity in order to elucidate the content of the Article II norm in light of
its history and of state practice.
This article will first contextualize Article II to better understand its
origins. This section will argue that the original intent behind the adoption
of Article II was to settle questions of international geography, namely the
nature of state territory in space, which accounts for its silence in terms of
property. This discussion will lay the foundation for the ensuing analysis
of property in the outer space environment. The second section of this
article will examine a variety of precedents that help reveal the nature of
Article II as understood by the state parties to the Outer Space Treaty in
relation to space resources. This analysis will examine state practice with
regard to territorial claims, real property claims, and chattel property
claims, which all touch on the legal content of Article II. Finally, this article
will address the future of the non-appropriation principle and argue that it
can accommodate both the maintenance of stability and security in space as
well as proposed commercial use and exploitation of space resources. This
section will conclude by arguing that states should avoid a race to bottom
in terms of developing legal regimes surrounding property rights and
resource extraction in space by balancing the benefit of the commercial
activity with the values and principles that underpin international space
law.
Before starting in this endeavor, it is important to note what this article
will not do. First, this article will focus squarely on the law and policy
found within the bounds of the Outer Space Treaty and customary
international law. It will not delve into the Moon Agreement in depth,
though reference will be made as needed. This is because the Moon
Agreement, while positing a workable system for the use and exploitation
of extraterrestrial resources, has not been widely accepted and serves a
minor role in the contemporary regime. Second, this article will not attempt
to offer a solution to the Article II problem. While it will suggest that there
are core values that need to be implemented in any regime or institution
that regulates resource extraction, whether domestic or international, it will
stop short of detailing specific recommendations for those regimes.
2018] Outer Space and International Geography 97
The non-appropriation principle first found its way into the vocabulary
of international space law in the 1961 United Nations General Assembly
(UNGA) resolution on outer space. Resolution 1721 (XVI) “commends”
states to use space according to two principles:
(a) International law, including the Charter of the United
Nations, applies to outer space and celestial bodies;
(b) Outer space and celestial bodies are free for exploration and
use by all States in conformity with international law and are not
subject to national appropriation.2
2 G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17, vol. XVI, at 6, U.N. Doc.
A/RES/1348 (XIII) (1958); G.A. Res. 1472, U.N. GAOR, 14th Sess., Supp. No. 16, at 5, U.N. Doc.
A/RES/1472 (XIV) (1959) (illustrating that while earlier resolutions do not mention items such
as “benefit of all mankind” and “peaceful purposes,” which later becomes principles guiding
outer space activity, they fall short of referring to them as such”).
4 Resolutions Adopted by the General Assembly at its 16th Session, UNITED NATIONS,
circumstances UNGA resolutions can create “instant” customary law, but he argues against
these early resolutions taking on such status).
6 G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, vol. XVIII, at 15, U.N. Doc
A/RES/1962 (vol. XVIII) (1963) (confirming a set of “legal principles” that govern outer space).
98 New England Law Review [Vol. 52 | 2
A. International Geography
ASSEMBLAGES 14 (2006).
8 See CARL SCHMITT, THE NOMOS OF THE EARTH IN THE INTERNATIONAL LAW OF THE JUS
PUBLICUM EUROPAEUM 42–44, 86, 140 (2003); MANFRED LACHS,
THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW-MAKING 19–20 (2010); IAN
CLARK, LEGITIMACY IN INTERNATIONAL SOCIETY 35–38 (2005).
9 SCHMITT, supra note 8, at 143–45.
2018] Outer Space and International Geography 99
10 See P.J. Blount & Christian J. Robison, One Small Step: The Impact of the U.S. Commercial
Space Launch Competitiveness Act of 2015 on the Exploitation of Resources in Outer Space, 18 N.C. J.
L. & TECH. 160, 170–72 (2016) (discussing global commons as a typology of spatial order).
11 U.N. CHARTER, art. 2, para 4.
13 See SCHMITT, supra note 8, at 185, 187 (referring to the “bracketing” of war).
15 Antarctic Treaty, Dec. 1, 1959, T.I.A.S. No. 4780, 402 U.N.T.S 71, 12 E.S.T. 794, (entered
16 Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies art. II, Sept. 25, 1967, 610
U.N.T.S. 205 (entered into force Oct. 10 1967) [hereinafter Outer Space Treaty].
2018] Outer Space and International Geography 101
17 Declaration of Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Dec. 13, 1963, U.N.G.A. Res. 18/62 (stating that the 1963 Declaration of
Legal Principles is widely accepted as a statement of customary international law); G.A. Res.
1962, U.N. GAOR, 18th Sess., Supp. No. 15, vol. XVIII, at 15, U.N. Doc A/RES/1962 (vol. XVIII)
(1963) (confirming a set of “legal principles” that govern outer space).
18 Sergio Marchisio, The Evolutionary Stages of the Legal Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS), 31 J. SPACE L. 219, 224 (2005).
19 Thomas Gangale, The Legality of Mining Celestial Bodies, 40 J. SPACE L. 187, 193 (2015–
2016).
20 Id. at 196–205.
21 Vienna Convention on the Law of Treaties art. 31, Dec. 28, 1979, 1155 U.N.T.S. 331
(entered into force Jan. 27, 1980).
22 MARTIN DIXON, TEXTBOOK ON INTERNATIONAL LAW, 161 (7th ed. 2013); R.Y. JENNINGS,
23 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 18, 106 (Phillip Babcock Gove ed., 3d
ed. 2002).
24 DIXON, supra note 22, at 162.
25 DIXON, supra note 22, at 167.
2018] Outer Space and International Geography 103
26 United Nations Treaties and Principles on Outer Space art. II, 2008 U.N.T.S. 11.
27 See Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 FORDHAM L. REV.
349, 349 (1969).
28 See Gorove, supra note 27 at 349.
29 See Gorove, supra note 27 at 350.
30 DIXON, supra note 22 at 167–69 (noting that the Article IV ban on weapons of any sort on
36 THE POLITICS OF GLOBALITY SINCE 1945 2–4 (Rens van Munster & Casper Sylvest, eds.,
2016).
104 New England Law Review [Vol. 52 | 2
C. Property
Outer Space Treaty in its Defence, (50th International Colloquium on the Law of Outer Space) 1
(2017).
40 Outer Space Treaty, supra note 16.
42 G.A. Res. 72/77, U.N. GAOR, International Cooperation in the Peaceful Uses of Outer
43 SCHMITT, supra note 8, at 42. (This is why Schmitt argues that “[l]aw is bound to the
earth and related to the earth.”).
44 See Anna Stilz, Nations, States, and Territory, 121 ETHICS 572, 572 (2011) (To be clear, this
is not a natural or necessary structure. For instance, if the political will was extant, then states
could adopt within international law universal articulations of property rights. The fact that
states did not do this pushes the notion of property to the territorial sovereign to decide.)
45 See John G. Sprankling, The Emergence of International Property Law, 90 N.C. L. REV. 461,
463 (2012).
46 See Outer Space Treaty, supra note 16.
47 See Timothy Justin Trapp, Taking Up Space by Any Other Means: Coming to Terms With the
Nonappropriation Article of the Outer Space Treaty, 4 U. ILL. L. REV. 1681, 1691 (2013).
48 See generally JOHN LOCKE: TWO TREATISES OF GOVERNMENT, SECOND TREATISE 368 Sec.
International Law in Europe: Between Tradition and Renewal, 16 EUR. J. INT’L L. 113, 117 (2005).
50 See Emmanuelle Tourme-Jouannet, The International Law of Recognition, 24 EUR. J. INT’L. L.
667, 668–69 (2013).
51 See Jessie Szalay, What Was The Enlightenment?, LIVESCIENCE (July 7, 2016),
https://perma.cc/B8H9-KGJ8.
106 New England Law Review [Vol. 52 | 2
have all global powers be a party to the new system despite their
ideological differences. The problem of non-participation was all too
evident in the failure of the League of Nations. The negotiators needed to
accommodate not just Western liberal political systems, but Marxist
systems as well. Marxist systems, obviously, maintain a fundamentally
different conception of property that rejects Lockean ideals. This is why,
under international law, property is treated as a local issue. Like other
human rights, states were left substantially free to order property within
their borders in any way that was deemed fit by the governing authority.
Property became a function of a state’s domestic law, and to this day all
states maintain different sets of rights applicable to property ownership
within their borders based on the physical characteristics of the territory
and the political ideology of the government. This positivistic turn in
international law uproots Locke as a foundational theory in order to
achieve a seamless global geography through the inclusion of non-Lockean
systems.
The final limitation to the Lockean argument is that Articles II and III
of the Outer Space Treaty serve to eliminate the state of nature. Locke’s
state of nature is best understood as a thought experiment to imagine how
law emerges when there is no law. Locke’s notion was linked to spaces
that sat outside of legal jurisdiction.56 While the space environment is for
the most part untouched by humans and still exists in its “natural state,”
space is not a state of nature in Lockean terms because a governance
system has been imposed on it. Article III of the Outer Space Treaty
effectively extends international law into the space domain, meaning that a
legal regime exists there. Further, Article I and II serve to acknowledge
that states do not view outer space as res nullius, that is as belonging to no
one and therefore subject to conversion into property through labor.
Instead, the Outer Space Treaty, in addition to the non-appropriation
principle, states that space is the “province of all mankind,” which most
commentators have deemed to create a res communis or in more modern
terms a global commons.57 While the use of ancient Roman legal terms has
rightfully been critiqued,58 it is very clear that the legal status of space is
different in kind than the theoretical state of nature as described by Locke.
The problem that results is that states are free to explore and use space,
as are their authorized private actors, but states are unable to appropriate
space “by any other means.” This results in significant limitations on a
state’s ability to protect property rights that could result from such use. If
a state were to sanction a private claim for real property in space, it could
amount to an assertion of sovereignty over the territory containing the
claimed property. Thus, claims of real property that assert exclusive
control over a spatial territory in space are likely prohibited by Article II,
due to the fact that state parties are disallowed from enforcing such rights.
This should not be surprising as similar claims to the high seas, deep
seabed, or Antarctica would have similar difficulties due to a state’s
inability to enforce those rights. This however, is not the end of the story,
because states can and do recognize property rights in movable property
that is attained outside its borders and specifically from global commons.
While each of the above mentioned global commons excludes the
possibility of claims for real property, each has a unique regime for the
exploitation of the resources found within. The Antarctic regime bans all
commercial use, whereas the deep seabed regime establishes an
international organization for the management of rights over extracted
resources. The high seas regime allows private actors to extract resources at
will, as long as they are in compliance of the laws of their local flag state
(which often incorporate international obligations), and gain direct
property rights over those resources, namely fish. This illustrates that
under international law, the legal recognition of rights in extracted
resources is a possibility in a global commons as part of the international
geography. The question is whether Article II allows such recognition. The
answer to this is murky at best due to the ambiguous language of the Outer
Space Treaty. However, we can look to state practice to see how states are
interpreting their obligations under Article II.
A. States in Space
Three states have effectively gone to celestial bodies and returned with
celestial material from space to Earth: the United States, the Soviet Union,
and Japan. Each of these states’ actions constitute state practice under
Article II. This section will address two aspects of these missions: first, the
way that states behaved in relation to possible territorial claims made by
2018] Outer Space and International Geography 109
their landings; and second, the way in which states have behaved in
relation to the extracted portions of those celestial bodies.
1. Territorial Claims
To be clear, no state has ever claimed any part of a celestial body as its
sovereign territory. The lack of these types of claims is an important
indicator of the content of Article II, but analysis should not stop there as
there is definite nuance to the way in which states, and specifically the
United States, have treated their interactions with celestial bodies.
In 1959, the Soviet Union became the first state to launch a spacecraft
that reached the surface of the moon, Luna-2. This craft engaged in
scientific experiments, but a notable aspect of it was that it contained a
spherical device with pendants or medallions that were intended to scatter
on the surface of the Moon upon impact, presuming they survived the
impact. These medallions contained the state symbol of the USSR, and the
words “USSR September 1959” (in Russian of course).59 The placement of a
state symbol on the Lunar surface bears significant resemblance to imperial
practice of planting a flag, a symbol of state sovereignty, on newly
discovered territory as an assertion of a state’s rights to that territory.
However, there is no indication that the Soviet Union ever asserted such
rights to the territory touched by these medallions. At the time, Luna-2 was
painted as a victory for the Soviet space program, which was quickly
racking up “firsts” in space much to the United States’ dismay. Days after
the Luna-2 impact, Soviet premier Nikita Khrushchev landed in the United
States for a state visit. Though tensions were high between the Cold War
leaders, Khrushchev presented President Eisenhower with a replica of the
Luna-2 sphere, as both a sign of international friendship and a Cold War
jab.60 It should also be noted that the Soviet Union, upon signing the Outer
Space Treaty made no mention of any claim effectuated by the Luna-2
landing, and its acceptance of the treaty can be seen as disclaiming any
residual claims that it may have retained.
The United States became the first nation to land a human on the Moon
in 1969 with its Apollo 11 mission. Apollo 11 astronauts, and those of the
subsequent Apollo missions, planted a United States flag on the surface of
the Moon. Similar to Luna-2, this act has all the trappings of traditional
imperial claims to newly discovered territory. In fact, the Apollo missions
amplify this through the use of an actual flag, which carries specific
significance when associated with a sovereign power, and also through the
accompanying human presence, which could be argued to give more
59 Richard Cavendish, The Soviet Union is First to the Moon, HISTORY TODAY (Sept. 9, 2009),
https://perma.cc/3VPY-WRKB; Becky Ferreira, The Other First Moon Landing, MOTHERBOARD
(Sept. 14, 2009), https://perma.cc/XXY9-6W6H?type=image.
60 Ferreira, supra note 59.
110 New England Law Review [Vol. 52 | 2
61 Apollo 11 Plaque Left on the Moon, NASA, https://perma.cc/U7FM-RWZE (last visited Sept.
7, 2019).
62 See Outer Space Treaty, supra note 16, art. V (tracking with the Outer Space Treaty,
which declares Astronauts to be “envoys of mankind” rather than envoys of their respective
states).
63 See Declaration of the First Meeting of Equatorial Countries, JAXA,
https://perma.cc/C9SB-FYFZ (last visited Oct. 27, 2017).
64 COLOM. CONST. art. 101.
2018] Outer Space and International Geography 111
2. Sample Return
Outer Space, 41 CASE W. RES. J. INT’L L. 119, 126 (2009) (pointing out that “over six missions
Apollo returned 842 lbs. of material”).
68 Apollo 11 General Declaration, U.S. CUSTOMS AND BORDER PATROL (July 24, 1969),
https://perma.cc/K589-ZDKE.
69 See Apollo Sample Catalogues, LUNAR AND PLANETARY INST. (Dec. 3, 1978),
https://perma.cc/9EQ5-4K8C.
70 U.S. and Soviet Exchange Lunar Soil to Mark Pact, N.Y. TIMES (June 11, 1971),
https://perma.cc/JQY4-GSG8.
112 New England Law Review [Vol. 52 | 2
Japan has not distributed these samples widely, likely based on the
small amount that was collected, but it has partnered with NASA and
transferred some of the particle samples to NASA for research. 76
Three important aspects of state practice in regards to samples from
celestial bodies should be noted. The first is that no state has ever objected
to another state engaging in a sample return mission, or challenged another
state’s ability to effectively own and control these samples. Second, these
samples may definitely be used in ways that provide a “benefit to all
mankind.” These benefits can flow through scientific research or through
gains in international peace and security through diplomatic uses. Finally,
71 Id.
72 Mike Bosworth, What Has Happened to NASA’s Missing Rocks?, BBC (Feb. 20, 2012),
https://perma.cc/9JBF-2SPZ; see, e.g., Douglas Martin, Space Artifacts of Soviets Soar at a $7
Million Auction, N.Y. TIMES (Dec. 12, 1993), https://perma.cc/M733-LAR8 (commenting that
interestingly, this same auction saw the Soviet government sell title to a lunar rover that was
still on the surface of the Moon.).
73 Hayabusa Asteroid Itokawa Samples, NASA, https://perma.cc/4B4L-AZTV (last visited Oct.
27, 2017).
74 Terms and Conditions for the International Announcement of Opportunity for Hayabusa Sample
Investigation, JAXA https://perma.cc/J2H6-T9MV (last visited Sept. 7, 2019).
75 FAQs, JAXA, https://perma.cc/4T6R-Z953 (last visited Sept. 7, 2019).
there is at least one example of state practice in which a state has used a
sample for commercial gain. As a result, we can say that state practice
clearly indicates that Article II does not prohibit states from extracting
material from celestial bodies, and that states seem to have some set of
rights to dispose of that material as they see fit.
registering his claim and his intent to own these surfaces. Hope’s letters
never received formal responses, and therefore he operates as if they are
uncontested. It should be noted that the Chinese government has blocked
the company from operating in China on the basis that it is fraudulent.79
A second case is that of Nemitz v. United States. Nemitz, the plaintiff
in this case, filed a security interest, under the California Uniform
Commercial Code, in the asteroid Eros. Then, when NASA landed a probe
on the asteroid, Nemitz sent NASA a bill for parking asserting that the
security interest gave him property rights in the asteroid. The bill itself
was minimal, but Nemitz’s goal was recognition rather than riches.80
NASA refused to recognize the claim by Nemitz, and eventually the matter
was referred to the State Department.81 The State Department denied
Nemitz’s claim based on Article II, stating “In the view of the Department,
private ownership of an asteroid is precluded by Article II of the Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies. Accordingly,
we have concluded that your claim is without legal basis.”82 Nemitz then
filed suit in the US District Court for the District of Nevada. This claim
was dismissed by the court for failure to state a claim. Specifically, the
Court stated that registration of a security interest does not create
“property interests.”83 Nemitz appealed to the 9th Circuit, which upheld
the lower court without a written opinion.84
There are other such examples of these types of claims. For instance, in
the early 1980s Lamar Savings and Loan Association “filed a request with
the Texas savings and loan commissioner to acquire permission to open a
branch office on the Moon.”85 This request would ultimately be rejected.
While all of these claims tend to philosophically support the idea of
property as a fundamental human right, they all in some way attempt to
get the claims recognized by the government through the use of local rules.
This reveals the thinness of appeals to natural law for the establishment of
such claims, in that each claimant recognizes the need for positive legal
recognition to vindicate their claims. Indeed, the central problem with
using these cases as precedent, either for or against property rights, is that
79 Chinese Lunar Land Sale a Great Idea but Illegal Says Government, SPACE DAILY (Dec. 7,
2005), https://perma.cc/XU4E-RYMD.
80 See generally, The Eros Project for Space Property Law, EROS PROJECT,
https://perma.cc/A6SP-NT8M (last visited Sept. 7, 2019).
81 See Kelly, supra note 32, at 298.
82 OrbDev Appeals to State Dept. For Eros Rent Ruling, SPACE DAILY (Aug. 28, 2003),
https://perma.cc/PVA8-HNM2.
83 Order Granting Defs. Mot. to Dismiss, 2, April 27, 2004, CV-N-03-0599-HDM(RAM).
these claimants universally lack any sort of possession, which the Nemitz
court found to be dispositive. To circumvent the possession issue, another
would-be claimant has been shooting a laser beam at Mars for years. He
argues that this could give him a “legitimate claim” to the Martian surface
based on the physical contact of the laser beam with Mars, which is cast as
Lockean labor that adds value to the Martian surface by helping to spark
the terraforming process.86 What all of these claims lack though, is a clear
nexus between the lex loci being used to justify the claim and the celestial
body being claimed. This is clearly an issue of sovereignty. Recognition
that someone has made a claim through procedural registration with a
governmental body is quite different from a governmental body having
territorial jurisdiction over that body, which is a necessary precursor to
granting real property rights.
86 FAQ: Frequently Asked Questions . . . and More, MARS FOR SALE, https://perma.cc/TL3Y-
KYGS (last visited Nov. 5, 2017) (stating that claimant is using his sale of Mars to build
support for ensuring the future usefulness of the Outer Space Treaty); Nick Whigham, Can
One Man’s Strange Claim to Ownership of Land on Mars Revamp International Space Law?, NEWS
LIMITED (July 18, 2017, 1:12 PM), https://perma.cc/3N7S-SDVY.
87 Mark Bosworth, What Has Happened to Nasa's Missing Moon Rocks?, BBC, (Feb. 20, 2012),
https://perma.cc/Q4VD-QJK9.
88 Fred Bardbash, NASA ‘Sting’ Operation Against 74-year-old Widow of Apollo Engineer
90 Id. at 1373.
91 United States v. Ary, 224 F.Supp.3d 1186, 1186 (D. Kan. 2016).
92 Id. at 1190.
93 Id. at 1190–91.
94 Id. at 1190.
95 Id. at 1190–91.
2018] Outer Space and International Geography 117
According to the court, to the extent that NASA was deprived of its
property through lack of notice, its remedy was against the United States
directly. While the lunar material was not at the heart of the court’s
decision in this case, it does indicate that the United States is authorized to
sell this material, which is consistent with the Soviet sale of lunar material.
Again, it should be noted that the court applies the lex loci in making its
decision on the transfer of title.
While these decisions are not conclusive on the notion of private
ownership of extracted extraterrestrial material, they both indicate that the
state has the ability to dispose of such material through a commercial sale,
and that the subsequent private ownership can be legal depending on the
local law of the state.
96 Id. at 1193.
97 See Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies art. 11, July 11, 1984, 18 I.L.M 1434 (explaining the Moon Agreement has entered into
force, it has a low number of ratifications and none from major space powers).
98 GOLDMAN, supra note 66, at 26.
99 See Outer Space Treaty, supra note 16.
118 New England Law Review [Vol. 52 | 2
with others,”100 this right, like most other human rights, is subject to local
governance within a territory.101 The right to own property then changes
as one crosses borders and enters new political and legal systems. 102 This is
an important feature within the international legal system because it made
it possible for states with divergent ideologies to come together as
sovereign equals.103 Territory is absolute, but property is subject to local
rules rather than international rules.104 Indeed, the state practice above,
and in particular the One Lucite Ball case, places lex loci rules as primary in
making determinations about property.105 In order for local rules to be
applied, there needs to be some nexus between the territory in which those
rules govern and the property at question.106 As a result, claims over real
property in outer space lack true ratification by governments, because they
exist outside the territorial jurisdiction of the state; whereas, claims over
extraterrestrial material that has been transported into the territory of the
state, thereby creating a nexus, will be resolved through local rules.107
Currently, multiple commercial entities are attempting to raise the
necessary capital to engage in transportation to and mining of celestial
bodies.108 These initiatives are high risk for investors and potentially offer
a high return on the investment, but in light of Article II some investors are
reluctant to put their money in these ventures without some clarity as to
whether that investment will be protected legally.109 In other words,
investors are concerned with whether these companies can own and
therefore dispose of the resources they extract under the lex loci.110 Both the
United States and Luxembourg have passed legislation that is intended to
make these investors feel secure in the legal rights to the extracted
resources.111
100 Universal Declaration of Human Rights, art. 17, Dec. 10, 1948, https://perma.cc/LXH2-
4ZGC.
101 See United Nations General Assembly, Role of Local Government in the Promotion and
Protection of Human Rights – Final Report of the Human Rights Council Advisory Committee,
Thirtieth Session, Before the Human Rights Council, HRC 30/49, 3, 7–9 (2015).
102 See generally MICHELE GRAZIADEI & LIONEL SMITH, COMPARATIVE PROPERTY LAW 193–95
(2017).
103 See Peter Rutledge, Toward a Functional Approach to Sovereign Equality, 53 VA. J. INT’L L.
181, 186 (2012).
104 See generally GRAZIADEI & SMITH, supra note 102, at 193–95.
105 United States v. One Lucite Ball, 252 F. Supp. 2d 1367, 1372 (S.D. Fla. 2003).
108 Benjamin Sutherland, Space Exploration Will Open Up in 2018, STEEMIT, https://perma.cc/
The United States passed the first of these laws in December 2015 as
part of the Commercial Space Flight Competitiveness Act.112 Title IV of this
legislation states 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.113
The law further states that “the United States does not thereby assert
sovereignty or sovereign or exclusive rights or jurisdiction over, or the
ownership of, any celestial body,” thereby disclaiming such exploitation as
an appropriation inconsistent with Article II.114
Luxembourg, as part of a strategy to attract the space industry to its
territory, followed suit passing a law in summer 2017.115 This law states
that “Les ressources de l’espace sont susceptibles d’appropriation.”116 The
law then goes on to say that such appropriation must comply with
Luxembourg’s international obligations: “L’exploitant agréé ne peut
exercer l’activité visée au paragraphe 1 er qu’en conformité avec les
conditions de son agrément et les obligations internationales du
Luxembourg.”117 While the Luxembourg legislation does use the word
“appropriation” to describe the act that it is making legal, it also uses a
disclaimer about the international obligations of the state. 118 The
Luxembourg law goes further than the U.S. law in that the bulk of its text
describes the nature of the authorization that Luxembourg will grant for
these activities.119
129 Stat. 704, (2015); Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace,
art. 1, LE GOUVERNEMENT DU GRAND-DUCHÉ DE LUX., https://perma.cc/558C-FH2N (last
visited Sept. 7 2019).
112 See generally U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114–90,
referred to in paragraph 1 in accordance with the conditions of the authorisation and the
international obligations of Luxembourg”).
118 Gov’t of the Grand Duchy of Lux., Draft Law on the Exploration and Use of Space
What is significant about both of these laws is that they are narrowly
tailored to only grant rights to the extracted resources. 120 Neither law
implies that a commercial entity will gain rights similar to “real property”
rights in the area of their extraction operations, because real property is
directly correlated to the territory in which it sits.121 Indeed, both laws
explicitly note that the international obligations of the state will be a
limitation on an entity’s ability to claim the property rights over the
extracted resources, though the U.S. articulation of this principle is much
stronger.122 These laws create a nexus between the state and the chattel
property in question through personal jurisdiction rather than territorial
jurisdiction.123 The U.S. law applies to U.S. citizens and the Luxembourg
law applies to entities authorized by the state. 124 This allows the two states
to avoid the restrictions of Article II by not asserting their jurisdiction in
such a way that implies sovereignty over the area of a celestial body, while
at the same time confirming that a state may authorize a non-governmental
entity to use space in accordance with Articles I and VI of the Outer Space
Treaty.
These laws have stirred much debate among academics as to their
legality under the Outer Space Treaty.125 Despite the criticism, there is
growing consensus that these laws represent, at a minimum, valid possible
interpretations of Article II obligations.126 In fact, such an interpretation is
consistent with the Russian sale of Lunar material, as well as the
recognition in One Lucite Ball that the lex loci applies to the disposal of
tangible property.127 Whether or not these interpretations become an
internationally accepted standard is yet to be seen, but surely more states
A/RES/1721(XVI) (1961), with U.S. Space Exploration Policy, Exec. Directive No. 31, N.S.P.D.
(Jan. 14, 2004).
120 See U.S. Space Exploration Policy, Exec. Directive No. 31, N.S.P.D. (Jan. 14, 2004).
121 Id.
122 Id.
123 See generally P. J. Blount, Jurisdiction in Outer Space: Challenges of Private Individuals in
Space, 33 J. SPACE L. 299 (2007); Frans von der Dunk, Effective Exercise of ‘In-space Jurisdiction’:
The US Approach and the Problems it is Facing, 40 J. SPACE L. 147 (2015) (discussing jurisdiction
in outer space).
124 See U.S. Space Exploration Policy, Exec. Directive No. 31, N.S.P.D. (Jan. 14, 2004).
125 Blount and Robison, supra note 10, at 161–62; Thierry Labro,
Luxembourg Space Exploration Laws Criticised, LUX. TIMES (Barbara Tasch, trans. Aug. 2, 2017),
https://perma.cc/F6XM-ZCEZ.
126 See Position Paper on Space Resource Mining, INT’L INST. OF SPACE LAW, 1–3 (Dec. 20, 2015),
https://perma.cc/JUQ3-QXK9.
127 See generally U.S. v. One Lucite Ball Containing Lunar Material, 252 F.Supp.2d 1367
(S.D. Fla. 2003) (holding the government’s evidence established probable cause that the moon
rock and display plaque were stolen from the Republic of Honduras and then introduced into
the United States).
2018] Outer Space and International Geography 121
131 A Legal Framework for Space Exploration, GRAND DUCHY OF LUX., (July 13, 2017),
https://perma.cc/286V-D9EX.
132 See Luxembourg Set to Become Europe’s Commercial Space Exploration Hub with New Space
136 See Luxembourg Set to Become Europe’s Commercial Space Exploration Hub with New Space
One of the core values embedded in the international space law regime
is that states should ensure that space is used for the benefit of all. While
this value likely rises to the level of customary international law, it is an
amorphous obligation that is an aspirational value rather than a hard legal
obligation. The principle, however, should not be minimized as new space
activities, including space resource extraction, emerge. Rather, states
should continue to ensure that even commercial uses of space provide
benefits to the global population. Commercial entities should not be
prohibited from making a profit from the use and exploration of space, but
the space regime treats space as a very different sort of place than those
found terrestrially. It would be folly to swing the pendulum too far in
favor of commercial profit. This could allow private entities to destabilize
the strategic space environment, which would destabilize the terrestrial
security environment. The result would be a use of space for the detriment
of all humankind.
This is not to say that there is a need to go as far as equitable sharing of
profits from resources as envisioned in the Moon Agreement. While that
would certainly be one way to accomplish using space for the benefit of all,
it is one that might overly hinder commercial exploitation and the failure of
the Moon Agreement shows that there is no political will to establish such
a system. Through the Outer Space Treaty, states have agreed to hold
themselves to a higher standard than they do terrestrially in order to serve
the entire human population. In the adoption of local rules for new space
activities, states have a moral and legal obligation to hold their
nongovernmental actors to similar standards. While Article VI makes clear
139 See Guilnem Penent, Governing the Geostationary Orbit: Orbital Slots and Spectrum Use in
that states may authorize the use of space by non-governmental actors, that
use is still governed by Article I, which requires the use to be “for the
benefit of all countries.” As resource extraction develops, Article II and the
question of property rights does not pose the biggest challenge. Instead,
the biggest challenge is avoiding a profit driven race to the bottom which
would gut the underlying values on which the international community
based the space regime.