“Asteroids for Sale”: Private Property

Rights in Outer Space, and the SPACE

Act of 2015

JUSTIN ROSTOFF ∗

ABSTRACT

Space mining. The fortunes are absolutely profitable and idealistically pro-
social. The question is whether such imperative, futuristic developments
are legal. International law governs activities in outer space, primarily the
provisions set forth in the Outer Space Treaty. Space exploration began
during the Cold War, when geo-political competition fueled domestic
policies to focus more on the instant gratification of “being first” rather
than creating long-term, sustainable celestial goals. Finding leverage in the
treaties’ ambiguous language, the United States unilaterally created private
property rights in outer space for U.S. citizens by enacting the SPACE Act
on January 6, 2016. This Note provides an interpretation and puts forth a
perspective that, according to the text of the Outer Space Treaty, private
property rights to celestial bodies are prohibited, thus invalidating section
51303 of the SPACE Act and declaring it unenforceable.

∗ Candidate for Juris Doctor, New England Law | Boston (2017). B.S., Economics &
Finance, Bentley University (2014). Appreciation goes to Amanda Palmeira for the idea of this
piece, the New England Law Review, and those who provided endless support through this
unforgettable journey.

373
374 New England Law Review Vol. 51|2

INTRODUCTION

S
pace mining: Claiming private property rights to celestial bodies in
order to extract natural resources. 1 It is absolutely profitable, 2 and
idealistically pro-social. 3 But is it legal? 4 The United States says “yes”
according to section 51303 of the SPACE Act, signed into law on November
25, 2015, and in force as of January 6, 2016. 5 Additionally, in accordance
with Article VI of the United States Constitution, four United Nations
space treaties “confer[] fundamental rights upon all [citizens] vis-à-vis [the
U.S.] government.” 6
This Note provides an interpretation and puts forth a perspective that
private property rights to celestial bodies are prohibited by the first
enacted U.N. space treaty—the Outer Space Treaty of 1967. 7 Thus, section
51303 of the SPACE Act violates governing international space law and the
United States’ international obligations. 8
Customary international law is a prominent component in forming
binding law upon national sovereignties. Understanding such, this Note
provides an argument that strictly according to the text of the Outer Space
Treaty, section 51303 of the SPACE Act is in violation of binding
international and federal laws. The argument that customary international
law via common practice should immunize the statute’s textual invalidity
is of a different, yet just as important perspective than that of this Note.

1 See Plans for Asteroid Mining Emerge, SCI. & ENV’T, BBC NEWS (Apr. 24, 2012),
https://perma.cc/T6L2-UGMN.
2 Emily Calandrelli, The Potential $100 Trillion Market for Space Mining, TECHCRUNCH (July 9,

2015), https://perma.cc/6M26-EK77 (stating that some near-earth asteroids have expected

market values of $100 trillion worth of natural resources).
3 See RICKY J. LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER

SPACE 1, 41–45 (2012) (suggesting asteroids contain an abundance of resources that are finite
on Earth, and it is just a matter of time before human innovation and all resource substitutes
are exhausted and mineral resources from celestial bodies become a necessity).
4 Sarah Fecht, Is Space Mining Legal?, POPULAR SCI. (Sept. 23, 2015), https://perma.cc/7BRF-

CWFC.
5 U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704 §

51303 (Nov. 25, 2015) [hereinafter The SPACE Act].

6 Matthew Feinman, Article, Mining the Final Frontier: Keeping Earth’s Asteroid Mining
Ventures From Becoming the Next Gold Rush, 14 U. PITT. J. TECH. L. & POL’Y 202, 221 (2014);
Michael J. Listner, International Space Law and Commercial Space Activities: The Rules do Apply,
THE SPACE REV. (June 3, 2013), https://perma.cc/46HG-3M33; see also Comm. on the Peaceful
Uses of Outer Space, Legal Subcomm, Rep. on its 54th Sess., Jan. 1, 2015, U.N. Doc.
A/AC.105/C.2/2015/CRP.8 (Apr. 8, 2015), https://per
ma.cc/J9RN-G8PR [hereinafter COPUOS Report] (listing the United Nations’ space treaties).
7 See infra Part III.
8 See infra Part IV.
2017 ”Asteroids for Sale” 375

Part I provides a legal background on the international and U.S. laws

governing outer space, including a status report on the current state of the
commercial space mining industry. Part II explains that an interpretation of
private property rights in outer space is important due to the lack of a legal
framework and the current enactment by the United States of the SPACE
Act. Part III begins the analysis, claiming that private property rights in
outer space are prohibited according to this Note’s interpretation of the
Outer Space Treaty. Part IV compares section 51303 of the SPACE Act to
the Outer Space Treaty, and argues that by legalizing privatized space
mining through the conveyance of private property rights, the statute
violates the provisions of the Outer Space Treaty and is therefore null and
void. Lastly, Part V analyzes the risks associated with space mining in
general, and the SPACE Act in particular; arguing that the unmitigated and
severe dangers associated with space mining should serve as a disincentive
to the current implementation of space mining ventures. For the greater
part of a century, an interpretation of international space law and national
sovereignty of outer space has been left to the trenches of scholarly articles
and academic disputes. Due to the recently enacted SPACE Act and newly
created private property rights in outer space, this Note finds it timely and
well-suited to continue the discourse with yet another scholarly
contribution.

I. International Space Law from a Sixty-Two-Mile-High View

A governing body of law regulating the conduct in, and use of, outer
space has been in force since 1967. 9 The lifeline of this Note relies on the
fact that there are laws governing human interaction in and with outer
space that the United States, U.S. citizens, and members of the United
Nations “must” follow. 10

A. The United Nations Treaties on Outer Space

International discussions regarding a peaceful and fair use of outer

space were first held by the United Nations in the 1950s—the heat of the
Cold War and the dawn of the space age. 11 In 1958, one year after the

9
The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies, U.N. GAOR, 21st Sess., Res. 2222
(XXI) (1967) [hereinafter Outer Space Treaty].
10 COPUOS Report, supra note 6; David Johnson, Comment, Limits on the Giant Leap for

Mankind: Legal Ambiguities of Extraterrestrial Resource Extraction, 26 AM. U. INT’L L. REV. 1477,
1493–95 (2011); Benjamin David Landry, Article, A Tragedy of the Anti-Commons: The Economic
Inefficiencies of Space Law, 38 BROOK J. INT’L L. 523, 530–31 (2013); Listner, supra note 6.
11 Daryl Kimball, The Outer Space Treaty at a Glance, ARMS CONTROL ASS’N (Sept. 2012),

https://perma.cc/3SDL-VG25.
376 New England Law Review Vol. 51|2

Soviet Union launched Sputnik—the first artificial satellite sent to outer

space and to orbit Earth 12—the United Nations created the Committee on
the Peaceful Uses of Outer Space (COPUOS). 13 COPUOS’s primary
purpose was to consider the legal issues associated with the then-present
international concern that outer space would become a playground for
military and technological rivalries among Earth’s two superpowers and
only spacefaring nations—the United States of America and the Soviet
Union. 14 COPUOS was established as a permanent body in 1959, out of
which all five existing United Nations treaties on outer space have been
produced and presented to the international community for ratification. 15
The five United Nations treaties on outer space compose the entirety of
current international space law, and are listed below in order of
enactment: 16
i. Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies (The Outer Space
Treaty); 17
ii. Agreement on the Rescue of Astronauts, the Return of
Astronauts and the Return of Space Objects Launched into
Outer Space (The Rescue Agreement); 18
iii. Convention on International Liability for Damage Caused
by Space Objects (The Liability Convention); 19
iv. Convention of Registration of Objects Launched into Outer
Space (The Registration Convention); 20 and

12 Steve Garber, Sputnik and the Dawn of the Space Age, NAT’L AERONAUTICS AND SPACE

ADMIN. (Oct. 10, 2007), https://perma.cc/R5N8-A7Q7.

13 COPUOS History, UNITED NATIONS OFFICE FOR OUTER SPACE AFFAIRS,
https://perma.cc/LF55-7627 (last visited May 7, 2018).
14 See id.
15 Id.; see Space Law Treaties and Principles, UNITED NATIONS OFFICE OF OUTER SPACE AFFAIRS,
https://perma.cc/73KH-BY2H.
16 Space Law Treaties and Principles, supra note 15; see Norry Harn, Note, Commercial Mining

of Celestial Bodies: A Legal Roadmap, 27 GEO. INT’L ENVTL. L. REV. 629, 633 (2015).
17 Outer Space Treaty, supra note 9.

18 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of

Space Objects Launched into Outer Space, U.N. GAOR, 22nd Sess., Res. 2345 (XXII) (1967)
[hereinafter Rescue Agreement].
19 Convention on International Liability for Damage Caused by Space Objects, U.N. GAOR,
26th Sess., Res. 2777 (XXI) (Nov. 29, 1971) [hereinafter Liability Convention].
20 Convention of Registration of Objects Launched into Outer Space, U.N. GAOR, 29th

Sess., Res. 3235 (XXVI) (1974) [hereinafter Registration Convention].

2017 ”Asteroids for Sale” 377

v. Agreement Governing the Activities of States on the Moon

and Other Celestial Bodies (The Moon Agreement). 21

The treaties are vague and not very inclusive; nevertheless, once
ratified, they become the governing body of space law for that nation. 22

1. The Outer Space Treaty

The Outer Space Treaty (OST) was a “remarkable endeavor of great

significance . . . . [since] [n]ations often in conflict with one another . . .
agreed on the first Treaty of general applicability governing activity in
outer space.” 23 Believed to be “the most important agreement in space
law,” 24 the OST was adopted by the United Nations General Assembly on
December 19, 1966, opened for State Party signatures on January 27, 1967,
and in force as of October 10, 1967. 25 According to the COPUOS Legal
Subcommittee’s report on April 8, 2015, the United States, Russia
(previously the Soviet Union), and 101 other State Parties have ratified the
OST. 26
As a State Party to the OST, and according to Article VI of the U.S.
Constitution, the OST is a treaty signed “under the Authority of the United
States” and “shall be the supreme Law of the Land . . . .” 27 Therefore, when
President Lyndon B. Johnson and the 90th U.S. Congress ratified the OST
on May 25, 1967, 28 all seventeen Articles became the legal equivalent of any
federal statute. 29 Due to the widespread ratification by international
sovereignties and compliance by non-party states, the OST is binding on all

21 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
U.N. GAOR, 34th Sess., Res. 34/68 (Dec. 5, 1979) [hereinafter Moon Agreement].
22See U.S. CONST. art. VI; Listner, supra note 6.
23Paul G. Dembling & Daniel M. Arons, The Evolution of the Outer Space Treaty, 33 J. AIR L.
& COM. 419, 420 (1967); Outer Space Treaty, supra note 9.
24 GIJSBERTHA C.M. REIJNEN, UTILIZATION OF OUTER SPACE AND INTERNATIONAL LAW 41

(1981).
25 Vladmir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and

Use of Outer Space, including the Moon and Other Celestial Bodies, AUDIOVISUAL LIBRARY OF INT’L
L., https://perma.cc/F27P-W7AK (last visited Mar. 11, 2018).
26 COPUOS Report, supra note 6; Blake Gilson, Note, Defending Your Client’s Property Rights

in Space: A Practical Guide for the Lunar Litigator, 80 FORDHAM L. REV. 1367, 1378 (2011) (“[A
State Party] means a State which has consented to be bound by the treaty”) (quoting the
Vienna Convention on the Law of Treaties, art. 2).
27 U.S. CONST. art. VI; see COPUOS Report, supra note 6.
28 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies, U.S. DEP’T OF ST. (Oct. 10, 1967),
https://perma.cc/TE6A-PZHS [hereinafter Treaty on Principles].
29 Listner, supra note 6.
378 New England Law Review Vol. 51|2

members of the United Nations and international space community. 30

2. The Rescue Agreement

The Rescue Agreement was negotiated by the United Nations Legal

Subcommittee from 1962 to 1967, entered into force on December 3, 1968, 31
and has been ratified by the United States and ninety-three other nations. 32
The Rescue Agreement primarily focuses on ways to assist astronauts in
danger, and the routes necessary to return astronauts to their launching
states. 33 Such measures were accurately depicted in the 2015 motion
picture, The Martian, where a U.S. astronaut was abandoned in space and
the People’s Republic of China provided their space-technology to assist in
returning the astronaut back to his home planet, Earth, and his launching
state, the United States of America. 34

3. The Liability Convention

The Convention on International Liability for Damage Caused by

Space Objects (Liability Convention) is the current body of law setting forth
the liability of state parties and international organizations for damage
caused by space objects. 35 A launching state is absolutely liable for
damages caused on Earth by the state’s space objects, or is jointly and
severally liable for damage caused to other state parties in outer space. 36
Sixty-two nations have ratified the Liability Convention since its
enforcement on September 1, 1972, including the major spacefaring
nations—the United States, Russia, and China. 37

4. The Registration Convention

In 1957, the first radio transmitter was sent into outer space—the
Soviet-launched Sputnik satellite. 38 In light of the then-current space race,

30 LEE, supra note 3, at 103.

31 G.A. Res. 2345 (XXII), Agreement on the Rescue of Astronauts, the Return of Astronauts
and the Return of Objects Launched into Outer Space (Dec. 19, 1967), https://perma.cc/6SQZ-
EKEN.
32 COPUOS Report, supra note 6.
33 See Timothy Justin Trapp, Note, Taking up Space by any Other Means: Coming to Terms with
the Nonappropriation Article of the Outer Space Treaty, 2013 U. ILL. L. REV. 1681, 1692 (2013).
34 THE MARTIAN (20th Century Fox 2015).
35 See generally Liability Convention, supra note 19 (stating that two-thirds of the Senators
present on October 6, 1972 passed the Convention on International Liability for Damage
Caused by Space Objects).
36 Id. at arts. II & IV.
37 See COPUOS Report, supra note 6.
38 JPL HISTORY, FIRST SATELLITES, https://perma.cc/WB7U-M8U5 (last visited Mar. 11, 2018).
2017 ”Asteroids for Sale” 379

from January 31, 1958 through 1973, the United States launched fifty
“Explorer” satellites into outer space. 39 With the dramatic increase of
satellite launches, and the need for a unified registry to keep track of outer
space activity, the United Nations adopted the Registration Convention on
November 12, 1974. 40 The Convention created a registry for launched
spacecraft to assist in establishing ownership in light of damage and
liability disputes. 41 As of 2015, the United States and sixty-two states
parties have ratified the treaty. 42 The Registration Convention was the last
U.N. space treaty signed and ratified by the United States. 43

5. The Moon Agreement

“That’s one small step for a man, one giant leap for mankind”—the
first words spoken on an extraterrestrial body. 44 Neil Armstrong and the
Apollo 11 crew were the first humans to step foot on the Moon or any non-
Earth celestial body. 45 Ballasting the lost weight of Old Glory, fuel, and
commemoration medals left behind honoring deceased Soviet cosmonauts,
Apollo 11 transported lunar samples back to Earth for study and
exploration; the first space mining venture in human history. 46
International concerns circulated regarding the risks associated with
unilateral state action on the surface of the Moon, and by 1979 the
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies (Moon Agreement) was adopted. 47 The Moon Agreement
was created as an attempt to put forth a legal framework to govern
property claims of the natural resources extracted from celestial bodies,

39See id.
40See Registration Convention, supra note 20; Elizabeth Howell, Who Owns the Moon? Space
Law & Outer Space Treaties, SPACE.COM (July 15, 2016), https://perma.cc/BX7U-QXFS.
41 See Michael J. Listner, International Space Law: An Overview of Law and Issues, 2011 N.H.

BAR J. 62, 62 (Spring 2011); Trapp, supra note 33, at 1694.

42 COPUOS Report, supra note 6.
43 Id.
44 July 20, 1969: One Giant Leap for Mankind, NASA (July 14, 2015), https://perma.cc/3KHR-

NGXZ.
45 Apollo 11 Mission Overview, NASA (Sept. 17, 2015), https://perma.cc/5ZXE-A8WA. The
Apollo 11 mission took place eight years after the Soviets sent the first human in history, Yuri
Gagarin, into outer space. Yuri Gagarin: First Man in Space, NASA (Apr. 13, 2011),
https://perma.cc/LSR9-3YEQ.
46 See Barbara Ellen Heim, Note, Exploring the Last Frontiers for Mineral Resources: A
Comparison of International Law Regarding the Deep Seabed, Outer Space, and Antarctica, 23 VAND.
J. TRANSNAT’L L. 819, 830 n.77 (1990).
47 Moon Agreement, supra note 21.
380 New England Law Review Vol. 51|2

with particular focus on the Moon. 48 Unlike the four prior space treaties
established by the United Nations, the Moon Agreement does not carry
much international or legal authority considering only sixteen state parties,
none of whom are independent spacefaring nations, have ratified the
Agreement. 49
The United States and most developed, industrialized countries have
not ratified the Moon Agreement, thus its provisions do not govern U.S.
activities within outer space. 50

B. Space Law and Policy in the United States

Russia sent the first satellite into space, 51 the first human, 52 and is
developing a satellite with a solely aesthetic purpose, completely covered
in mirrors in order to reflect the Sun’s rays and be the brightest object in
the sky (as viewed from Earth). 53 But the first humans to ever step foot on
another celestial body, the first space pioneers in human history, were U.S.
citizens on a U.S. mission. 54 The most recent “giant leap for mankind”
occurred on January 6, 2016, when the SPACE Act granted citizens of the
United States private property rights to celestial bodies. 55
Prior to the SPACE Act, there was no legal basis to claim private
property rights in an asteroid. 56 Even the director of Space and Advanced
Technology for the U.S. Department of State is on the record stating,
“private ownership of an asteroid is precluded.” 57 The United States has
historically incentivized and supported the commercial space industry,

48 See Sarah Coffey, Note, Establishing a Legal Framework for Property Rights to Natural
Resources in Outer Space, 41 CASE W. RES. J. INT’L L. 119, 127 (2009).
49 COPUOS Report, supra note 6; Harn, supra note 16, at 636.
50 COPUOS Report, supra note 6; Coffey, supra note 48, at 127, 129 (spacefaring nations
reject the Moon Agreement because its provisions prohibited property rights); see Austin C.
Murnane, Note, The Prospector’s Guide to the Galaxy, 37 FORDHAM INT’L L.J. 235, 257–58 (2013).
51 Garber, supra note 12.
52 Nola Taylor Redd, Yuri Gagarin: The First Man in Space | The Greatest Moments in Flight,

SPACE.COM (July 24, 2012 2:00 PM), https://perma.cc/Z3AK-MGZ9.

53 Conor Gearin, Crowdfunded Russian Satellite Could Be World’s First Space Monument,
NOVANEX, WGBH (Mar. 7, 2016), https://perma.cc/L7E6-7Q
SZ.
54 Matt Williams, Who Were the First Men on the Moon?, UNIVERSE TODAY,

https://perma.cc/T2YJ-DP6V.
55 The SPACE Act, supra note 5.
56 See, e.g., Nemitz v. U.S., 2004 WL 3167042, at *1 (D. NV Apr. 26, 2004) (“Nemitz has failed
to demonstrate [a] . . . legal basis for his claim of a private property right on an asteroid.”).
57 Murnane, supra note 50, at 259 n.149 (citing Letter from Ralph A. Braibanti, Director,
Space and Advanced Technology, United States Department of State, Bureau of Oceans and
International Environmental and Scientific Affairs to Gregory William Nemitz).
2017 ”Asteroids for Sale” 381

with national space policies calling for private investment and

development of industry-leading technologies. 58 An overview of the
country’s national space policy shows a progression towards a completely
privatized space sector. 59
The National Aeronautics and Space Administration (NASA) was
created under the Eisenhower administration on July 29, 1958. 60 Although
not expressly stated, the goal was to make sure that the Soviet Union did
not rocket ahead of the United States in the space race, with space
exploration being the popular competitive fad between the two
superpowers. 61 In 1984, under the Reagan administration, NASA’s purpose
expanded from a strictly governmental focus to “promot[ing] economic
growth and entrepreneurial activity through use of the space
environment,” and “encourag[ing] the United States private sector” to
innovate and provide technologies necessary for the United States’ human
spaceflight program. 62
Twenty years later under the Bush administration, the United States
furthered its policy of encouraging commercial space development by
codifying the national goal “of safely opening space to the American
people[;] [with] private commercial, scientific, and cultural enterprises . . .
guid[ing] federal space investments, policies, and regulations.” 63 Fast-
forward to 2010 and the United States put forth yet another national policy
promoting private investment in space exploration. 64 President Obama, on
behalf of the United States, expressed that “[the] U.S. commercial space
sector . . . supports U.S. needs, is globally competitive, and advances U.S.
leadership in the generation of new markets and innovation-driven
entrepreneurship.” 65 In light of the 2010 national space policy, NASA
discontinued its spaceflight program in hopes of private companies picking
up the reigns of developing innovative and renewable spacecraft
technologies. 66

58 Infra notes 61–70 and accompanying text.

59 See Part I.B.
60 Steven J. Dick, The Birth of NASA, NASA (Mar. 28, 2008), https://perma.cc/H4EF-ZBBQ.

61 The Space Race, HISTORY.COM (2010), https://perma.cc/BSG7-ARHZ.

62 Commercial Space Launch Act, Pub. L. No. 98-575, 98 Stat 3055 § 3 (1984).

63 Claudia Pastorius, Law and Policy in the Global Space Industry’s Lift-Off, 19 BARRY L. REV.

201, 207 (2013) (quoting Commercial Space Launch Amendments Act of 2004, 51 U.S.C. §
50901(a)(10) (2012)).
64 See Listner, supra note 41, at 65.
65 Pastorius, supra note 63, at 207; see Listner, supra note 41, at 65 (acknowledging the
United Nations’ recognition that the 2010 space policy is consistent with principles of outer
space).
66 Pastorius, supra note 63, at 206.
382 New England Law Review Vol. 51|2

Long-term national goals in regard to space exploration have

systemically been subordinate to more tangible or directly beneficial social
and economic concerns. 67 For the individuals that control space funding,
“their own reelection incentive and constituency concerns may operate
against NASA’s . . . interests.” 68 NASA is a government administration that
survives as a line item on the federal budget; 69 thus, it is extremely
beneficial to Congress and the progression of the space industry for the
government to contract with private companies to assist in governmental
space ventures. 70

C. Space Mining is Booming

Private U.S. companies like Planetary Resources, Deep Space

Industries, Moon Express, Inc., Shackleton Energy Company, Stone
Aerospace, and many more have been developing groundbreaking
technologies in preparation for the day when space mining’s benefits are
widely accepted as imperative and necessary to the survival and expansion
of the human race. 71 After all, most manufacturing and industrial
development consists of non-renewable resources that will cease to exist in
the next 200 years. 72
Planetary Resources is developing robotic spacecraft to explore
asteroid candidates, and Deep Space Industries invented the Firefly and
the Dragonfly, both of which would scout, collect, and transport space or
asteroid resources back to Earth. 73 Shackleton Energy Company and Stone
Aerospace are investing millions in private capital to develop ice-drilling
robotic probes to mine the surface of the Moon and Europa. 74 Moon
Express has signed a partnership agreement with NASA to invent a “lunar
lander” that will transmit high definition data back to Earth. 75
Unfortunately, the lack of established property rights is a large disincentive

67 Richard S. Conley, The Perils of Presidential Leadership on Space Policy: The Politics of

Congressional Budgeting for NASA, 1958-2008, AM. POLITICAL. SCI. ASS. CONF. 8–9 (2010),
https://perma.cc/UE7A-TSNM.
68 Id. (“[S]huttle flight is the equivalent of . . . jobs, houses, and veterans’ benefits . . . .”)

(internal citation omitted).

69The U.S. Federal Budget, INSIDE GOV., https://perma.cc/QR3D-JG6G (last visited Mar. 11,
2018) (analyzed year-by-year).
70 See Lauren E. Shaw, Asteroids, The New Western Frontier: Applying Principles of the General

Mining Law of 1872 to Incentivize Asteroid Mining, 78 J. AIR. L. & COM. 121, 127–29 (2013).
71 See id. at 129–30, 136.
72 See Global Resources Stock Check, BBC (June 18, 2012), https://perma.cc/GR2P-65L9.
73 Shaw, supra note 70, at 129–30.

74 Id. at 130.

75 Id. at 129.
2017 ”Asteroids for Sale” 383

that exists for future investment and continued development of long-term

space mining ventures. 76 Only with the establishment of such property
rights will companies have the legal power to enforce ownership rights
regarding resources they plan to spend billions of dollars to extract,
possess, and hopefully sell. 77 But have no fear: the United States is here. 78

D. The Next Giant Leap for Mankind: The SPACE Act of 2015

The United States’ promotion of a commercialized outer space was

extensively expanded through the adoption of the SPACE Act. 79 Section
51303, titled “Asteroid Resource and Space Resource Rights” reads as
follows:
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. 80

Most spacefaring nations conduct celestial activity by contracting with

commercial space companies to perform government work; 81 but now
according to section 51303 of the SPACE Act, the United States is entitling
commercial companies to personally profit from private property rights to
celestial bodies. 82 Section 51303 says that a U.S. citizen is “entitled to”—not
“granted,” which is a term too akin with a national conveyance, which they
cannot do— 83 but “entitled to . . . any asteroid resource or space resource
obtained . . . .” 84 Does that mean every person is entitled to it? Equally? 85

76 Id. at 130–31 (since no laws equals no legal security).

77 See John S. Lewis & Christopher F. Lewis, A Proposed International Legal Regime for the Era
of Private Commercial Utilization of Space, 37 GEO. WASH. INT’L L. REV. 745, 759 (2005); Adam G.
Quinn, Note, The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space, 17
MINN. J. INT’L L. 475, 500 (2008). But cf. Lynn M. Fountain, Note, Creating Momentum in Space:
Ending the Paralysis Produced by the “Common Heritage of Mankind” Doctrine, 35 CONN. L. REV.
1753, 1756 (2003).
78 The SPACE Act, supra note 5.
79 Shaw, supra note 70, at 138 (“[I]n order to address the [private sector] concerns, the law
must first develop to the point where it encourages investors to mine asteroids.”). But cf.
Pastorius, supra note 63, at 219.
80 The SPACE Act, supra note 5 (emphasis added).
81 See Listner, supra note 6; Shaw, supra note 70, at 128–30; Pastorius, supra note 63, at 210.
82 The SPACE Act, supra note 5.

83 See Outer Space Treaty, supra note 9, at art. II.

84 The SPACE Act, supra note 5.

85 See Murnane, supra note 50, at 262–63 (questioning whether mankind owns space
384 New England Law Review Vol. 51|2

The legality of section 51303 is further discussed in Part IV below.

Section 51303 concludes by explicitly acknowledging that the statute
must follow “the international obligations of the United States.” 86 Once
again, according to the U.S. Constitution, the referenced international
obligations are set forth in the first four United Nations treaties. 87 “Not
only is the federal government legally committed to abide by the terms
of . . . the [ratified treaties], [but] so are private citizens [who are] under the
United States’ domestic jurisdiction.” 88

II. The Importance of this Space Mission

This Note provides a perspective that the OST prohibits private

property rights to celestial bodies in outer space, and, according to such an
interpretation, the SPACE Act is in violation of applicable “international
obligations” and federal law; thus constituting an invalid and
unenforceable statute. 89 Article II of the OST clearly states that no nation
may appropriate or claim sovereignty to any part of outer space; 90 and as
“the argument goes, . . . only a government with sovereignty over territory
may grant property rights to [its citizens].” 91
Although this Note argues that space mining is legally prohibited, it is
an undisputed fact that space mining is crucial to society and human
survival. 92 Unfortunately, there are excessive externalities—both positive 93
and negative—and the negatives are too risky for the U.S. to unilaterally
grant private property rights in outer space. 94 The reactions of foreign
regimes to enforcement of the SPACE Act are unpredictable. 95 The
international space industry may be at a point where another space treaty

collectively or jointly).
86 The SPACE Act, supra note 5.

87 See Listner, supra note 6; COPUOS Report, supra note 6 (showing that the United States

has only ratified four of the five United Nations treaties).

88 Listner, supra note 6.
89 See Murnane, supra note 50, at 259–62.
90 Outer Space Treaty, supra note 9, at art. II.

91 Murnane, supra note 50, at 259.

92 See LEE, supra note 3, at 1 (“[E]xploitation of mineral resources from celestial bodies [will]

become[] a necessity.”); Shaw, supra note 70, at 131–32 (arguing that benefits from space
mining are in society’s best interest and extend far beyond economic profits).
93 See Landry, supra note 10, at 526.

94 See Lee Billings, War in Space May be Closer Than Ever, SCI. AM. (Aug. 10, 2015),

https://perma.cc/8X8A-3SCP; Landry, supra note 10, at 555; Sarah Scoles, Dust from Asteroid
Mining Spells Danger for Satellites, NEW SCIENTIST (May 30, 2015), https://perma.cc/4AE4-2K2V.
95 See Landry, supra note 10, at 555 (explaining that China may enact the same law and
refuse to coordinate with the U.S., leading to property rights in an asteroid being granted to
U.S. and Chinese citizens).
2017 ”Asteroids for Sale” 385

is necessary; along the lines of the Antarctic Treaty or the United Nations
Convention on the High Seas. 96 Such measures require tremendous
amounts of effort, and there are currently many other epidemics 97 and
tragedies occurring around the world. 98 As argued herein, the superior
alternative is to wait and consider alternative routes to the progression of
space activity rather than the extreme measure of granting ownership
rights. 99 Due to the dangers of a militarized and weaponized outer space,
as discussed in Part V.C. below, this Note disagrees with the view that the
military should develop and implement space ventures. 100 Space mining
operations are not yet feasible. 101 The United States should wait for
international cooperation on the legal, scientific, and technological research
before enacting a law that indirectly creates impermissible national
appropriation. 102
During the span of an almost idle Congress 103 whose inability to agree
has shutdown government operations, 104 the Congressional decision to
agree on commercialized space mining legislation appears to be, in the
words of David Bowie, a “space oddity.” 105 Granted, commercialism has
innovated and evolved human society; from riding canoes to riding
spacecrafts, from discovering islands on Earth to discovering planets in
space. 106 Due to the enactment of the SPACE Act, future international
attempts at similar unilateral laws lacking international approval are

96 See Johnson, supra note 10, at 1490–93.

97 See MSF Alert: Five Epidemic Diseases to Watch in 2016, DOCTORS WITHOUT BORDERS (Jan.
26, 2016), https://perma.cc/WK59-6NGU (consisting of Cholera, Malaria, and Zika Virus).
98 See Adam Nossiter & Rick Gladstone, Paris Attacks Kill More Than 100, Police Say; Border

Controls Tightened, N.Y. TIMES (Nov. 13, 2015), https://perma.cc/8M64-ZU28 (covering the
November 2015 terrorist attack in Paris carried out by ISIS); Abbey Oldham, 2015: The Year of
Mass Shootings, THE RUNDOWN, WGBH (Jan. 1, 2016), https://perma.cc/2BLW-TNXR
(reviewing the hundreds of mass shootings taking place in the United States in 2015).
99 See Shaw, supra note 70, at 154 (proposing alternative asteroid mining law in line with

General Mining Law of 1872).

100 See Conley, supra note 67, at 10.

101 See LEE, supra note 3, at 16, 69, 82.

102 See Landry, supra note 10, at 562.

103 See Dylan Matthews, Why Congress Can’t Seem to get Anything Done, WASH. POST (Jan. 26,

2013), https://perma.cc/PUK9-F7XB.
104 See Kirsten Appleton & Veronica Stracqualursi, Here’s What Happened the Last Time the

Government Shut Down, ABC NEWS (Nov. 18, 2014), https://perma.cc/X8YG-YYLG.

105 See The SPACE Act, supra note 5; DAVID BOWIE, Space Oddity, on DAVID BOWIE (Philips
1969).
106 See generally THEODORA ASIMAKOU, INNOVATION, KNOWLEDGE AND POWER IN

ORGANIZATION 179–80 (2009).

386 New England Law Review Vol. 51|2

likely. 107 This Note analyzes and interprets the governing body of
international space law in a manner that prohibits private property rights
in outer space, making section 51303 of the SPACE Act and any similar
federal laws invalid and unenforceable. 108

ANALYSIS

III. Private Property Rights According to the Outer Space Treaty

Out of the seventeen Articles in the OST, five provisions prescribe

general laws governing conduct in outer space that affect how the OST
treats private property rights in general, and space mining in particular. 109
The provisions are: Articles I (freedom of use), II (non-appropriation), VI
(international responsibility), XII (international reciprocity), and XIII
(application).

A. Article I: Freedom of Use

Article I of the OST reads in part:

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 . . . shall be the province of all
mankind . . . . [and] shall be free for exploration and use by all
States . . . . 110

“Shall be the province of all mankind” is a crucial phrase of Article I

that affects the property rights affiliated with privatized space mining. 111
Does this mean that mankind is “entitled to” the use of outer space as
stated in the SPACE Act? 112 The permissibility of privatized space mining
by U.S. citizens falls heavily on whether “province” is synonymous with
“common heritage.” 113 The fifth United Nations treaty on outer space, the
Moon Agreement, used “province of mankind” and “common heritage of
all mankind” synonymously. 114 The phraseologies are ambiguous, yet
scholars and government officials support “that the common heritage of

107 See Landry, supra note 10, at 555.

108 See infra Parts III & IV.
109 See Dembling & Arons, supra note 23, at 451.

110 Outer Space Treaty, supra note 9, at art. I.

111 Id.

112 See The SPACE Act, supra note 5.

113 See Gilson, supra note 26, at 1385 (arguing that if “province” and “common heritage” are

interpreted synonymously then there may be a significant limitation on private property

rights).
114 Moon Agreement, supra note 21, at arts. I, XI.
2017 ”Asteroids for Sale” 387

mankind doctrine originates in the ‘province of all mankind’ language,”

thus applying to the OST. 115
Regarding outer space in general, and celestial bodies in particular, if
Article I of the OST is interpreted to treat outer space as the common
heritage of mankind, then all benefits derived from the privatized mining
of celestial bodies in outer space must be shared equally among all human
inhabitants of planet Earth. 116 This interpretation significantly limits the
legality of U.S. citizens’ private and exclusive property rights to natural
resources extracted from celestial bodies, while also providing a crippling
disincentive for private investment in commercial space mining. 117
Since “province of all mankind” is arguably synonymous with the
“common heritage of all mankind” doctrine, property that has not been
appropriated, claimed, and lacks national sovereignty belongs equally to
all mankind currently existing or to be born; and all benefits derived from
the property shall be equally distributed amongst the human species. 118
The twenty-eight nations that composed the United Nations Outer Space
Committee extensively discussed claims of sovereignty to celestial bodies,
and chose the language of Article II to expressly prohibit claims of
sovereignty in outer space. 119

B. Article II: Non-Appropriation

Article II of the OST supports the interpretation that outer space was
intended to be treated as the common heritage of all mankind. 120 The
Article reads:

115 Compare Gilson, supra note 26, at 1385, nn.164–66 (acknowledging that “one school of
thought holds that the common heritage of mankind doctrine . . . applie[s] . . . to the Outer
Space Treaty), and Listner, supra note 6, at 62 (“The overriding principle of the Outer Space
Treaty is that space is the common heritage of all mankind . . . .”), with Trapp, supra note 33, at
1690, n.82 (“One possible interpretation is that the term ‘province’ be interpreted to denote an
‘an administrative district or territory . . . as Ontario is a province of Canada . . . .’”).
116 Pastorius, supra note 63, at 227.
117 See Gilson, supra note 26, at 1385.
118 Pastorius, supra note 63, at 227.

119 Outer Space Treaty, supra note 9, at art. II; see also Dembling & Arons, supra note 23, at

419–22.
120 Compare Outer Space Treaty, supra note 9, at art. II (prohibiting national claims of

ownership), with Harminderpal Singh Rana, Note, The "Common Heritage of Mankind" & the
Final Frontier: A Revaluation of Values Constituting the International Legal Regime for Outer Space
Activities, 26 RUTGERS L.J. 225, 228 (1994) (providing that no nation legally owns the
designated international areas).
388 New England Law Review Vol. 51|2

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. 121

Article II clearly states that state parties may not claim ownership to
anything that is within outer space at the time of possible appropriation. 122
The OST was drafted with an eye toward military threats and claims of
ownership to territory within outer space between the United States and
the Soviet Union. 123 Article II portrays this narrow scope through the
absence of any language addressing private property rights in outer
space. 124
Article II creates many ambiguities as to what constitutes national
appropriation, whether private property rights are considered
“appropriation by any other means,” and whether Article II of the OST
discriminates between private and state party property rights. 125 Scholars
from the International Institute of Space Law interpreted the language to
“prohibit national and private appropriation.” 126 Likewise, during the
formation process of the OST, COPUOS delegates recognized that Article
II’s language lacked a clear establishment of what constituted
“appropriation” and “use,” further acknowledging that the issue of
extracting celestial resources was not technologically feasible and would be
punted for the legal community to form a cognizable understanding as to
the technological and procedural issues related to space mining. 127
The value of property rights is heavily measured on the power to
enforce such rights against an individual without rights to the claimed
property; 128 since what is a right without a remedy? 129 According to the
SPACE Act, the United States is the authority that grants and enforces
exclusive private property rights. 130 But, nemo dat quod non habet, 131 and

121 Outer Space Treaty, supra note 9, at art. II.

122 Id.; see Trapp, supra note 33, at 1696 (“[T]he Outer Space Treaty flatly prohibits national
appropriation of space . . . .”).
123 See Johnson, supra note 10, at 1486.
124 See Outer Space Treaty, supra note 9, at art. II.

125 Gilson, supra note 26, at 1388.

126 Murnane, supra note 50, at 262 n.165 and accompanying text.

127 Johnson, supra note 10, at 1505 nn.164–65.

128 JOHN P. LEWIS, LAND USE CONTROLS AND PROPERTY RIGHTS: A GUIDE FOR REAL ESTATE

PROFESSIONALS 3 (2007).
129 Gilson, supra note 26, at 1372–73.
130 Trapp, supra note 33, at 1697 (reasoning that a nation enforcing a private citizen’s
property rights by excluding citizens of other nations is a form of indirect national
appropriation), see also The SPACE Act, supra note 5.
131 Nemo dat quod non habet, BLACK’S LAW DICTIONARY 1933 (10th ed. 2014) (“No one gives

what he does not have.”); cf. Mitchell v. Hawley, 83 U.S. 544, 550 (1872) (“No one in general
2017 ”Asteroids for Sale” 389

Article II clearly sets forth that the United States cannot have any
ownership rights to outer space, the Moon, or other celestial bodies. 132
Therefore, this Note argues that granting and enforcing private property
rights in asteroid and space resources constitutes an indirect “form of
national appropriation,” and is in violation of Article II of the OST. 133
Article VI is an expansion on who may conduct activities in outer
space; non-governmental entities are listed as permitted actors subject to
the authorization and continuing supervision of the appropriate state
party. 134 For example, when NASA contracts SpaceX to send cargo to the
International Space Station (ISS), the United States is considered the
appropriate state party and therefore the supervisor and authorizer of all
SpaceX operations and activity within outer space. 135

C. Article VI: International Responsibility

Article VI of the OST indirectly binds private citizens and non-

governmental entities to the OST provisions due to the required
supervision and authorization by an “appropriate State Party.” 136 Article VI
reads in part:
States Parties to the Treaty shall bear international responsibility
for national activities . . . carried on by governmental agencies or
by non-governmental entities . . . . The activities of non-
governmental entities in outer space, including the moon and
other celestial bodies, shall require authorization and continuing
supervision by the appropriate State Party to the Treaty. 137

As the OST does not provide a definition, disputes inevitably exist as

to what constitutes an “appropriate State Party.” 138 Legal academics, and
fellow State Parties agree that a private citizen’s state of nationality is the
appropriate State Party to authorize and supervise the activities in outer
space. 139

can sell . . . property and convey a valid title to it unless he is the owner or lawfully represents
the owner. Nemo dat quod non habet.”).
132 Outer Space Treaty, supra note 9, at art. II.
133 Trapp, supra note 33, at 1697 (reasoning that a nation enforcing a private citizen’s
property rights by excluding citizens of other nations is a form of indirect national
appropriation).
134 Outer Space Treaty, supra note 9, at art. VI.

135 Shaw, supra note 70, at 128–32.

136 Harn, supra note 16, at 636–37.

137 Outer Space Treaty, supra note 9, at art. VI.

138 See Harn, supra note 16, at 636–37.

139 BESS C.M. REIJNEN, THE UNITED NATIONS SPACE TREATIES ANALYSED 113 (1992); Harn,

supra note 16, at 637 (“In practice, states have fulfilled their obligations as the ‘appropriate
390 New England Law Review Vol. 51|2

The relevance of Article VI to privatized space mining is that

authorization and supervision by an appropriate State Party of private
property rights to a respective citizen creates such a nexus between the
State Party and the private actor that the activities should be considered
state action and prohibited under Article II’s restriction of national
appropriation. 140 Thus, the United States does not have the authority to
grant property rights to asteroid and space resources under the SPACE
Act. 141
Just as State Parties may not claim exclusive ownership rights against
other State Parties to anything within outer space, Article XII prohibits a
State Party from excluding other nations from accessing that State’s
ventures and activities in outer space. 142

D. Article XII: International Reciprocity

Although hard to fathom, political and legal risks pertaining to

property rights—as opposed to financial or technological constraints—are
predominant factors stalling the progression of space mining. 143 As
corporations functioning in a capitalist economy, risks cost money, hence
the term “risk premium.” 144 What are easily fathomable, however, are the
disincentives from investing $2.6 billion in a space mining mission that 102
other state parties have the right to access and observe at all times. 145
Article XII reads in part:
All stations, installations, equipment and space vehicles on the
moon and other celestial bodies shall be open to representatives
of other States Parties to the treaty on the basis of reciprocity. 146

Planetary Resources 147 and Deep Space Industries 148 are two private

state’ by enacting domestic laws . . . .”).

140 See Outer Space Treaty, supra note 9, at art. II.
141 See supra Part III.A.; infra Part IV.
142 Outer Space Treaty, supra note 9, at art. XII.

143 LEE, supra note 3, at 92 (“Given the gravity of the abovementioned risks, it is highly

unlikely that any investor . . . would be willing to finance a commercial mining venture in
outer space.”); Shaw, supra note 70, at 139 (stating that a lack of “property right arrangements
to support asteroid mining by private firms” provides no legal assurance that the
astronomical investment costs will be worthwhile).
144BRADFORD CORNELL, THE EQUITY RISK PREMIUM: THE LONG-RUN FUTURE OF THE STOCK
MARKET 132 (1999).
145 Leonard David, Is Asteroid Mining Possible? Study Says yes, for $2.6 Billion, SPACE.COM

(Apr. 24, 2012), https://perma.cc/QH9T-YSDB.

146 Outer Space Treaty, supra note 9, at art. XII.
147 PLANETARY RESOURCES, https://perma.cc/AMD2-DGM3 (last visited Mar. 11, 2018).
2017 ”Asteroids for Sale” 391

entities paving the way in the commercial space mining industry. 149 If
Article XII of the OST binds private space mining ventures to international
reciprocity, 102 different state parties will have the opportunity to observe
and impede on the competitive edge and intellectual property associated
with each private entity’s mining activity. 150
“The freedom of access to all areas of celestial bodies [under Article I’s
free use language and Article XII’s international reciprocity requirement,]
poses a significant legal obstacle for a commercial space mining venture . . .
as mining activities require some degree of exclusivity . . . .” 151 Planetary
Resources and Deep Space Industries would not have the ability to exclude
other competitors from the areas of celestial bodies where extraction was
taking place because any other possible observer would be acting on behalf
of its appropriate state party: 152 Imposing a major economic-risk for
commercial space mining ventures prior to personally investing more
capital than the nominal GDP of twenty-eight countries. 153 Such financial
gambles are not always a determinant, an example being Elon Musk taking
Tesla open-source and releasing patents to the general public for “the
advancement of electric vehicle technology.” 154 But for those living in the
twenty-first century, it is no surprise that Elon Musk is an anomaly. 155
The Articles of the OST discussed above are the regulations and
restrictions placed upon private activity in outer space. 156 What is
threatening to the commercial space industry in general, and privatized
space mining ventures in particular, is that the OST applies to the conduct
of private citizens and governmental entities alike, thus governing the

148 DEEP SPACE INDUSTRIES, https://perma.cc/998L-6LJT (last visited Mar. 11, 2018).
149 See Shaw, supra note 70, at 128–29; Technology, DEEP SPACE INDUSTRIES,
https://perma.cc/M9PL-F7E7 (last visited mar. 11, 2018); Technology, PLANETARY RESOURCES,
https://perma.cc/9AUW-BQ7N (last visited Mar. 11, 2018); Marcus Woo, Designing a
Mothership to Deliver Swarms of Spacecraft to Asteroids, WIRED (Dec. 17, 2014, 7:30 AM),
https://perma.cc/36WY-4TUZ.
150 Outer Space Treaty, supra note 9, at art. XII.

151 LEE, supra note 3, at 165 (emphasis added).

152 See REIJNEN, supra note 139; Harn, supra note 16, at 637 (“In practice, states have fulfilled

their obligations as the ‘appropriate state’ by enacting domestic laws . . . .”).

153 See World Economic Outlook Database: By Country, INT’L MONETARY FUND,

https://perma.cc/4A2X-ZMBZ (Oct. 2015) (reporting that twenty-eight countries have nominal

GDPs of less than $2.6 billion, which is the estimated cost of a space mining mission).
154 Elon Musk, All Our Patent Are Belong to You, TESLA (June 12, 2014),

https://perma.cc/G3EA-9KF5; see Brian Solomon, Tesla Goes Open Source: Elon Musk Releases
Patents to ‘Good Faith’ Use, FORBES (June 12, 2014, 1:21 PM), https://perma.cc/3976-K662.
155 See generally Elon Musk, BIOGRAPHY.COM, https://perma.cc/C93W-WHNP (last visited

Mar. 11, 2018).

156 See supra Part III.A–D.
392 New England Law Review Vol. 51|2

activity authorized by section 51303 of the SPACE Act. 157

E. Article XIII: Application

The OST and all of its provisions should be analyzed according to “the
maxim: ius ex facto oritur (‘law originates from facts’).” 158 Privatized space
mining of natural resources from asteroids was inconceivable by a vast
majority of Earth’s inhabitants as well as the original States delegates to
COPUOS in 1967. 159 Thus, the facts leading to the creation and adoption of
the OST—those of war, the balance of power, and limited technological
capabilities—assist in interpreting whom and what the OST was intended
to regulate. 160 Article XIII reads in part:
The provisions of this Treaty shall apply to the activities of States
Parties . . . in the exploration and use of outer space, including
the moon and other celestial bodies, whether such activities are
carried on by a single State Party . . . or jointly with other States,
including cases where they are carried on within the framework
of international intergovernmental organizations. 161

The applicability of the OST appears to be multi-tiered, applying to a

“single State Party,” a multi-state venture, or multiple states cooperating
“within the framework of international intergovernmental
organizations.” 162 According to a report of two NASA attorneys during the
evolution of the OST, the predominant dispute among the states parties
and their delegates regarding Article XIII was if the OST applied to states
parties as well as international intergovernmental organizations. 163 Article
XIII does not contain any language concerning private parties; in fact it
very specifically states whom the treaty does apply to, and that is “states
parties.” 164 All conduct must be by state parties, 165 therefore private
ventures must be authorized and supervised by the appropriate state
party, and since ownership of anything in outer space is prohibited
according to Article II, commercial or even public-private commercial

157 Shaw, supra note 70, at 137–139; The SPACE Act, supra note 5 (space mining activities
must be “in accordance with . . . international obligations of the United States.”)
158 REIJNEN, supra note 24, at 43.

159 See LEE, supra note 3, at 165.

160 REIJNEN, supra note 24, at 43. See generally Treaty on Principles, supra note 28 (setting forth

the agreed upon terms for use and exploration of outer space).
161 Outer Space Treaty, supra note 9, at art. XIII.
162 Id.; REIJNEN, supra note 139, at 140–41.
163 Dembling & Arons, supra note 23, at 451.

164 Outer Space Treaty, supra note 9, at art. XIII.

165 Id.
2017 ”Asteroids for Sale” 393

space mining is impermissible state action. 166

IV. Section 51303 of the SPACE Act Violates Article II of the Outer Space
Treaty by Indirectly Appropriating and Conveying Ownership
Rights to Celestial Bodies

“Appropriation is the permanent taking of property for one’s exclusive

use or the exercise of exclusive control or use on a permanent basis.” 167
According to Article II of the OST, the United States may not
“appropria[te] by claim of sovereignty, by means of use or occupation, or
by any other means,” objects within outer space, including celestial
bodies. 168 Further, through authorization and supervision by the United
States, private parties are only permitted to conduct activities in outer
space that abide by the OST regulations. 169 A nation’s authorization and
supervision of commercial conduct should legally transform the private
action into state action, therefore conveying upon private parties the same
regulations governing the United States via the OST. 170 According to this
interpretation of the OST, not only is the United States prohibited from
owning or conveying property rights to asteroid and space resources, but
private entities cannot claim ownership or appropriation to said
resources. 171
Section 51303 of the SPACE Act invalidly grants private citizens the
right to obtain, possess, own, transport, use, and sell any space or asteroid
resource, indirectly creating a form of territorial sovereignty over the
celestial body. 172 Territorial sovereignty is legally invalid since “[s]tate
jurisdiction in outer space cannot be linked to the appropriation of any part
of outer space or of the territory of a celestial body.” 173
The United States is expressly forbidden from extending sovereignty
over any part of outer space, 174 consequently preventing the ability to grant
property rights to any asteroid or space resource. 175 Only a government
with sovereignty over territory may grant property rights in that territory

166 See supra Part III.B.2.

167 Fountain, supra note 77, at 1762.
168 Outer Space Treaty, supra note 9, at art. II.

169 Id. at art. VI.

170 Id.

171 Id. at art. II.

172 The SPACE Act, supra note 5.

173 IMRE ANTHONY CSABAFI, THE CONCEPT OF STATE JURISDICTION IN INTERNATIONAL SPACE

LAW 52 (1976).
174 Outer Space Treaty, supra note 9, at art. II; Fecht, supra note 4.
175 LEE, supra note 3, at 55; Landry, supra note 10, at 562.
394 New England Law Review Vol. 51|2

to another, 176 and it is binding international law that no government or

state party to the OST may claim sovereignty to the territory of a celestial
body in outer space. 177 By attempting to create and grant private property
rights to celestial bodies through the SPACE Act, the United States is
indirectly claiming that it has sovereignty over the celestial territory that
would be subject to space mining ventures; a claim that is prohibited by the
OST. 178
Since the OST governs U.S. conduct, the United States and its citizens
have no legal claim to private property of celestial bodies; and section
51303, which created and granted such property rights in asteroid and
space resources, violates the governing body of international space law and
is therefore null and void. 179 Not only is the legislation bad law, but it is
extremely bad policy due to the unmitigated international, environmental,
and military externalities. 180

V. The Negative Externalities Are Astronomical

Five years after the widespread ratification of the OST, the United
Nations adopted and enforced the Liability Convention, expanding the
liability provisions expressed in Article VI and discussed above in Part
III.A.3. 181 As ratified under federal law, the Liability Convention enforces
the most persuasive and daunting externality of all—monetary liability. 182

A. The Liability Convention

According to Article II of the Liability Convention, when state parties

directly or indirectly conduct space activities, the state will be “absolutely
liable to pay compensation for damage caused by its space objects.” 183 Due
to vague language and ambiguity caused by undefined terms, it is not
clearly stated whether the Liability Convention pertains to damage caused
by space mining ventures. 184 “Damage” is defined as “loss of life, personal
injury or other impairment of health; or loss of or damage to property of
States or of persons, natural or juridical, or property of international

176 Murnane, supra note 50, at 259.

177 Outer Space Treaty, supra note 9, at art. II.
178 Id.; see The SPACE Act, supra note 5; Outer Space Treaty, supra note 9, at art. II.

179 Fecht, supra note 4 (noting that the SPACE Act permits the U.S. to convey rights it does

not have the power to give).

180 Infra Part V.

181 REIJNEN, supra note 139, at 175; REIJNEN, supra note 24, at 72.

182 Liability Convention, supra note 19.

183 Id. at art. II.

184 See id. at art. I(d) (creating ambiguity with a vague definition of “space object” and no

reference to private conduct or space mining).

2017 ”Asteroids for Sale” 395

intergovernmental organizations.” 185 The definition of “space object” uses

the term to define itself; “‘space object’ includes component parts of a space
object as well as its launch vehicle and parts thereof.” 186 According to the
Liability Convention, a “space object” is the components of said object;
therefore “space object” remains undefined. 187
Deep Space Industries plans to “hitch rides” on the spacecraft of
others. 188 Would the mining equipment be considered a “space object?” 189
How about a “component part of a space object?” 190 Or could it be “parts
thereof?” 191 Further, the Liability Convention governs liability caused by a
“state,” 192 and the application of the OST arguably inputs the interpretation
that commercial space activity is synonymous with state-action. 193 In
regard to the SPACE Act, the United States and a respective commercial
entity, acting as one, would be connected to the monetary liability caused
by a mining venture acting under section 51303. 194
Although Gregory Nemitz and many other outer space pioneers would
prefer to ask for forgiveness rather than permission, 195 the possible
damages caused by space debris and other environmental concerns that are
not addressed by the Convention’s language are so vast that receiving
forgiveness would be out of the question. 196 Such unforgiveable damage is
the ill-famed yet realistic theory that “an asteroid could be pushed out of
orbit and into an Earth-destroying trajectory.” 197 Just imagine:

Ground control to Major Tom. 198 Asteroid-RIPBOWIE has been

forced out of orbit due to your recent excavations. The asteroid is

185 Id. at art. I(a).

186 Id. at art. I(d).
187 Id.

188 See DSI Media, Deep Space Industries, VIMEO (July 31, 2015), https://perma.cc/7TVD-

2DRZ.
189 See Liability Convention, supra note 19, at art. I(d).
190 Id.
191 Id.

192 Id. at art. I(c).

193 Outer Space Treaty, supra note 9, at arts. VI, XIII.

194 Liability Convention, supra note 19, at art. II.

195 Leonard David, Who Owns the Asteroids? Space Mining Project Raises Legal Questions,

SPACE.COM (July 10, 2012, 2:17 PM), https://perma.cc/W8GV-66R4.

196 See Trapp, supra note 33, at 1692 (expressing concern over the Liability Convention’s lack

of language concerning space debris and its dangers).

197 Shaw, supra note 70, at 137.
198 DAVID BOWIE, Space Oddity, on DAVID BOWIE (Philips 1969).
396 New England Law Review Vol. 51|2

expected to hit southeastern Sudan in roughly eight hours—

destroying the entire African continent. Godspeed. 199

The previous encounter seems quite far out; however, as the acclaimed
space scholar Ricky J. Lee beautifully articulated, the current state of space
development and technological advancements was once “inconceivable to
all except the most devoted science fiction writers and film-makers.” 200
In the example above, if Major Tom and his crew were conducting
mining activities on Asteroid-RIPBOWIE for the U.S. Government with no
contribution from other nations or state parties, then the United States and
Major Tom’s commercial employer would be absolutely liable for the
complete destruction of an entire continent. 201 But this Note takes issue
with the Liability Convention, as it is unclear whether such mass
destruction would even fall under the scope of considered damages. 202
Extracting natural resources from Asteroid-RIPBOWIE using
extraterrestrial mining equipment was the cause of the asteroid’s change in
trajectory, but according to the Liability Convention it is unclear whether
or not the mining equipment qualifies as “space objects,” which would
bring such damage within the Convention’s scope. Further, the elimination
of Africa was a direct result of Asteroid-RIPBOWIE, not that of the mining
equipment. 203
The SPACE Act appears to be a domestic decoy since the United States
would be unilaterally imposing liability on itself for a vast array of
damages that are impossible to remediate or monetize; such as the death of
over one billion people and the destruction of the second most populated
continent on Earth. 204 There are too many questions left unanswered about
the SPACE Act with no supporting infrastructure to help navigate through
the legislation. 205 Without drilling into free-floating celestial bodies with
the mass and power to destroy the Earth, the planet is already dealing with
a serious space debris crisis caused by deteriorating space infrastructure
and anti-satellite rockets. 206

199 Shaw, supra note 70, at 137.

200 LEE, supra note 3, at 11.
201 Liability Convention, supra note 19, at art. II.

202 See supra note 184 and accompanying text.

203 Liability Convention, supra note 19, at art. I(d).

204 See 2013 World Population Data Sheet, POPULATION REFERENCE BUREAU,
https://perma.cc/5BU7-JHXV (last visited Mar. 11, 2018).
205 Fecht, supra note 4.

206 See Tim Robinson, Space Debris: The Legal Issues, ROYAL AERONAUTICAL SOC’Y (Jan. 3,

2014), https://perma.cc/VMF2-JGKR.
2017 ”Asteroids for Sale” 397

B. The Environmental Risks

Planet Earth is extremely vulnerable to celestial activities. 207 Broken

satellites burn and crash into Earth, debris of space infrastructure has
formed a destructive orbit around the planet, and with the exploitation of
the rights created by the SPACE Act, it is likely that fragments of celestial
ore caused by mining ventures will be added to the debris-cocktail floating
around the planet. 208 Roughly five percent (5%) of escaped debris from
mining a near-earth asteroid (NEA) would invade satellite orbits; and the
mining of an NEA only five meters in diameter would likely increase the
risk of satellite destruction by roughly thirty percent (30%). 209
This Note believes that the United States is not only understating the
Earth’s vulnerability to space debris and satellite risks associated with
space mining, but it is also increasing the legal vulnerabilities as any
damage caused by space mining ventures would attach liability to the U.S.
Government per the OST 210 and the Liability Convention. 211 So then, what
happens in a situation where debris created by a space mining venture
ends up destroying a Chinese satellite, which transcends down to Earth
and annihilates a half-dozen homes in Marblehead, Massachusetts? 212 In
2013, the Chinese Military used anti-satellite rockets to destroy an
unutilized Chinese satellite, out of which debris, subject to the Kepler
Effect, 213 collided with Russia’s BLITS NANOSATELLITE. 214 The Chinese-
Russian outer space accident provides a timely, real-life event to portray
the interconnection between environmental risks and the damages caused
by a militarized outer space. 215

207 See Subrata Ghoshroy, The X-37B: Backdoor Weaponization of Space?, 71 BULL. ATOMIC

SCIENTISTS 19, 20 (2015).

208 See LOTTA VIIKARI, THE ENVIRONMENTAL ELEMENT IN SPACE LAW: ASSESSING THE

PRESENT AND CHARTING THE FUTURE 33 (2008); Robinson, supra note 206; Sourabh Kausahl &
Nishant Arora, Space Debris and its Mitigation, Presented at the 2010 ISEC Space Elevator
Conference, SPACE FUTURE, https://perma.cc/6P9C-S42F.
209 Space Mining Debris a Threat to our Satellites, SCI. ON THE GO! (June 8, 2015),

https://perma.cc/UF48-85LN.
210 Outer Space Treaty, supra note 9, at art. VI.
211 Liability Convention, supra note 19.
212 See Scoles, supra note 94.

213 Kepler’s Laws of Orbital Motion, SMITHSONIAN NAT’L AIR & SPACE MUSEUM,

https://perma.cc/CB5N-AZMA.
214 Leonard David, Russian Satellite Hit by Debris from Chinese Anti-Satellite Test, SPACE.COM
(Mar. 8, 2013), https://perma.cc/PHU7-J6BA.
215 Brian Chow, China’s New Space Threat and the Justification of US Pre-emptive Self-Defense,

THE SPACE REV. (Jan. 18, 2016), https://perma.cc/QL7N-AQZ5.

398 New England Law Review Vol. 51|2

C. Militarization and Weaponization Concerns

Since the beginning of the international discourse on the laws

governing outer space, states have wanted to make nuclear weapons in
outer space unequivocally illegal. 216 Yet, the international treaties are vague
and non-inclusive on this matter as well. 217 The United States is the most
vulnerable to the danger of space destruction, since more than forty-
percent (40%) of the operating satellites orbiting the Earth are the property
of the United States, followed by Russia (10%) and China (9%). 218 Despite
the divestment of governmental funding, the United States has continued
to conduct classified spaceflight programs, of which many are believed to
be connected to the country’s military concerns. 219 After all, within the
four-month time-span of November 2015 to February 2016, China and
North Korea have both launched rockets into orbit, portraying security
risks positively correlated with a nation’s accessibility to outer space. 220
U.S. federal officials with credible intelligence clearances express that
Chinese space developments are expanding China’s military capabilities.221
In November 2015, China tested a new, high-speed, hypersonic glide
vehicle, causing national concern since Chinese space development
programs—unlike those in the United States—do not separate military
development from scientific and civilian oriented programs. 222 The US-
China Economic Security Review Commission’s Annual Report to
Congress affirmed and provided notice that China’s co-orbital antisatellite
systems contain robotic arms capable of grappling and destroying U.S.
space assets, as well as posing threats of space debris when used to carry
out Chinese missions. 223
On March 18, 2016, North Korea fired a ballistic missile travelling 500
miles before crashing into the sea along the coast of the Sea of Japan. 224
North Korea’s rocket capabilities are unpredictable, illustrated by orders
from Supreme Leader Kim Jong-un to test ballistic missiles capable of
carrying nuclear warheads, and then three days later firing a ballistic

216 BRUCE A. HURWITZ, THE LEGALITY OF SPACE MILITARIZATION 108 (1986).

217 See REIJNEN, supra note 24, at 41–43, 46.
218 Ghoshroy, supra note 207.

219 Id. at 21.

220 Bill Gertz, Stratcom: China Moving Rapidly to Deploy New Hypersonic Glider, FREEBEACON

(Jan. 22, 2016, 6:05 PM), https://perma.cc/TQ9T-4ZTY; Mike Wall, North Korea Launches Satellite
to Space, SPACE.COM (Feb. 8, 2016, 7:00 AM), https://perma.cc/8WNA-3WHD.
221 Pastorius, supra note 63, at 205.

222 Id. at 206.

223 Chow, supra note 215.

224 Associated Press, UN Blasts Kim Jong-un, North Korea Over Ballistic Missile Tests, N.Y.

DAILY NEWS (Mar. 19, 2016), https://perma.cc/39U7-JCGV.

2017 ”Asteroids for Sale” 399

missile capable of travelling 500 miles. 225 This shows that North Korean
space development is not idle. 226
NEAs have estimated values in the billions to trillions of U.S. dollars. 227
One asteroid can be worth more than five times the GDP of the United
States, and commercial space mining ventures now have an express federal
statute laying out private property rights in asteroid and space resources. 228
The United States took unilateral action in regards to the SPACE Act, and
other foreign regimes may take notice and do the same. 229 It is
undetermined what and who will govern when international property
rights in outer space overlap due to wide-spread unilateral action. 230 When
the United States, China, and Russia have independent ideas of property
rights in outer space due to a lack of conformity, diplomatic tension will
ensue, and China has the capabilities to physically prevent space assets
from possessing “Chinese” property in outer space. 231 There is enough war
on Earth in 2016, and the United States may have provoked yet another—
space wars. 232

CONCLUSION

Mankind has evolved socially and innovated technologically to a point

where space exploration is a reality. Why society creates laws to govern
accessible boundaries is beyond the scope of this analysis, however what
matters is that there are laws governing outer space and binding the
international community. The legal framework of outer space consists of
five treaties produced by the United Nations, four of which have been
ratified by the United States. Through ratification of the OST and per
Article VI of the U.S. Constitution, the OST conveys fundamental rights
upon all U.S. Citizens. Therefore, the OST and three other ratified treaties
have preemptive authority in the U.S. judicial system.
The OST governs activity conducted within outer space, and it

225 Id.
226 See id.
227 Nancy Atkinson, The Most Profitable Asteroid is . . . , UNIVERSE TODAY (May 16, 2012),

http://www.universetoday.com/95169/the-most-profitable-asteroid-is/#
[https://perma.cc/F3YC-GFZY]; Clive Thompson, Space Mining Could Set Off a Star War, WIRED
(Jan. 14, 2016 7:00 AM), https://perma.cc/JP6B-6VVX.
228 The SPACE Act, supra note 5; Thompson, supra note 227.

229 Landry, supra note 10, at 555.

230 See id.

231 Chow, supra note 215; Thompson, supra note 227.

232 See generally Thompson, supra note 227 (explaining that “spacefaring nations” could set

off a real star wars over trillions of dollars of nickel and cobalt).
400 New England Law Review Vol. 51|2

expressly states that (i) outer space is for equal use of all mankind, (ii)
claims of sovereignty or national appropriation are prohibited, (iii)
commercial activity in space is a form of state-action, (iv) excluding others
from outer space activities is prohibited, and (v) the only activity permitted
in outer space is on behalf of state parties. Therefore, according to the
interpretation provided herein, section 51303 of the SPACE Act violates the
OST and is an invalid statute.
Section 51303 is not only bad law, but it was also enacted in the
presence of severe international, environmental, and military concerns.
According to the Liability Convention, the United States and the
commercial entity engaging in a space mining venture would likely be
monetarily liable for all damages caused by the venture. This vulnerability
can calculate in the trillions of dollars. Earth’s orbit is already plagued with
an exorbitant amount of space debris, posing a threat to all satellites and
spacecraft launched into space. Even worse, China and North Korea are
passively conducting spaceflight tests of missiles and rockets that contain
the capability of carrying nuclear warheads and causing destruction to
Earth and U.S. space assets.
Space mining is imperative to human survival. Most necessary natural
resources will be depleted within three generations. But science and
celestial activities require diligence and research, something the SPACE
Act neglects. Undoubtedly, space exploration requires the mining of
celestial bodies in order to develop fuel stations in outer space and
minimize operational costs. Space mining is perfect in theory, but for now,
theory is all it can be, since the governing body of space law prohibits the
ability for states and citizens to claim property rights in outer space. Thus,
space mining in general, and section 51303 of the SPACE Act in particular,
is legally invalid; and what is the purpose of a legal system if the laws are
not enforced?