Where No Law Has Gone Before: Space Resources, Subsequent Practice, and Humanity's Future in Space

Abstract

Outer space, the “final frontier,” is the subject of countless science fiction books and movies that display humanity’s deep fascination with the possibilities of our species living among the stars. An inevitable and necessary part of any human society in space is the existence of laws that govern our activities and interactions with each other and our surroundings, including the use and ownership of the natural resources found in outer space. These “space resources” are now at the center of modern space law debates because the current treaty regime governing outer space leaves the existence and nature of rights to use and own space resources subject to broad interpretation. In response to burgeoning private sector interest in mining space resources, the U.S. passed legislation in 2015 purporting to recognize the right of private parties to own space resources. However, rather than clarifying the legal situation, this new law has occasioned a spirited debate over whether it comports with the United States’ obligations under the Outer Space Treaty. Much scholarship has been devoted to interpreting the obligations of the Outer Space Treaty pertaining to space resources. Most of this scholarship has concentrated on an analysis of the text itself and the preparatory work that went into the development of the Treaty. However, scholars remain divided in their analysis of the meaning of the Treaty’s obligations. This Note examines how the subsequent practice of states parties to the Outer Space Treaty, including the recent U.S. legislation, informs the interpretation of the treaty regime that governs outer space and space resources.