Image by Kieran Burnie
On 30 May 2020, history was made. SpaceX successfully launched their Crew Dragon shuttle into the atmosphere and, perhaps more impressively, safely landed the detached Falcon 9 booster back on Earth. In doing so, SpaceX demonstrated that spaceflight is commercially viable, and in the wake of their launch, the company has started designing facilities to allow paying customers to experience spaceflight for themselves.
SpaceX is by no means the only company looking to enter the spatial market: Amazon’s founder, Jeff Bezos, established “Blue Origin” in the hopes that the company would eventually “tap [the] unlimited resources and energy [of space]”. Similarly, Virgin Galactic’s vision is to “open space to everybody and change the world for good”.
Inevitably, as these multinational corporations develop the means with which to exploit and explore the far depths of outer space, the question of ownership will arise. Some celestial bodies are valued in quintillions of dollars and there are few investors in any industry who would be willing to share such a prize. Can these private entities lay claim to individual mineral-rich asteroids, or should the celestial bodies of space be owned by all for the benefit of humanity?
At present, the main authority on international space law is the Outer Space Treaty. Article 1 expressly states that outer space “shall be the province of all mankind”. This is highly problematic for an investor: if space is the province of all humanity, then one investor cannot exclude another from exploiting a celestial body to which they both claim ownership. This could negatively impact the value of resources in outer space, as there will be reduced commercial competition for the limited resources if any investor can access all deposits.
Even if it were possible to exclude other investors from celestial bodies, other Articles in the Outer Space Treaty further complicate the matter. On Earth, natural resources such as oil and gas are (in most countries) owned exclusively by the State in which they are found. That State has the power to transfer the right to own, explore, and exploit to an investor in return for taxes and royalties on the produced minerals. However, Article 2 of the Outer Space Treaty states that “outer space … is not subject to national appropriation by claim of sovereignty, by means of occupation or by any other means”. Instead, it is “free for exploration and use by all”. It is therefore not possible for an investor to obtain a mineral right in outer space in the same way they can on Earth: no State can claim sovereignty over a celestial body and thus cannot transfer the right to explore and exploit the deposit in question.
Perhaps the solution is to treat the depths of space in the same manner as the untamed high seas. Under Article 137 of the United Nations Convention on the Law of the Sea (UNCLOS), “No State shall claim or exercise sovereignty... over any part of [the seabed] or its resources”. In practice, States possess the right to explore and exploit mineral resources and, once they have been recovered and brought to the wellhead, obtain ownership through the legal fiction of “capture”. A State does not claim sovereignty in the high seas (which would award the right to own, explore and exploit) – instead, they possess the right to first simply explore and exploit, and only acquire ownership once the mineral has been extracted from below the seabed.
One could argue that spatial resources should be treated similarly. No single State or investor “owns” a celestial body but, once they have extracted a mineral, they shall acquire ownership of that mineral. SpaceX, Blue Origin and Virgin Galactic would be perfectly capable of exploiting celestial bodies in accordance with the Outer Space Treaty, as they would never claim to own the celestial body they exploit – it is owned by all humanity, just like mineral reserves of the continental shelf.
Outer space is considered the property of the human race – but there are a select few private organisations that are capable of actually using it. In order to comply with the Articles of the Outer Space Treaty, neither State nor individual may lay claim to a celestial body. But, by applying the law of capture to the exploitation of outer space, it is possible to allow investors to harness the untapped potential of mineral deposits beyond our atmosphere.
The future of ownership in space seems to be this – that space shall continue to be owned by all of humanity, despite only being used by those with the resources to reach it.