Interpreting 'Space Resources Obtained': Historical and Postcolonial Interventions in the Law of Commercial Space Mining

Abstract

This Note addresses a fundamental ambiguity in the U.S. Commercial Space Launch Competitiveness Act of 2015 (“CSLCA”). It is unclear whether the statute authorizes U.S. citizens to extract natural resources from asteroids and other celestial bodies, as is commonly assumed. Alternatively, the statute can be read to merely entitle citizens to resources that have already been obtained, where the regime for actually obtaining such resources remains undetermined. The Note resolves this issue in favor of the interpretation that best aligns with international law and policy. It first shows that the relevant elements of international law—the Outer Space Treaty of 1967 (“OST”) and customary international law (“CIL”)—do not resolve the issue. The Note then adopts a broader approach by considering the OST’s anti-imperial policy. By engaging scholarship on law, colonialism, and empire, this approach centers Global South States in space law discourse. This approach reveals two ways in which the more commonly accepted interpretation of the CSLCA cuts against the anti-imperial policy of the OST, related to the distinction between private and State extraction and to State conferral of property rights. To avoid contradicting these policy concerns, the CSLCA should be read narrowly, such that it leaves open future determination of the space resources regime. Finally, the Note offers guidance for such a regime. It argues that CIL development based on subsequent legislation or mining would let Global North States asymmetrically shape international law, which would contradict the OST’s anti-imperial policy. Instead, the Note recommends multilateral agreements that employ organizationally diverse models, which mix collective and private ownership. The Note ends by reflecting on lingering questions in the context of development and the Global South. An earlier version of this paper was presented at the 2018 Salzburg Global Seminar in Washington, DC as part of the Salzburg Cutler Fellowship.