By: Claire Cockrell
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
We as humans have long been fascinated by the prospect of distant worlds. As law students, many of us have undoubtedly pondered the legalities of property claims in the cosmos including the ownership of land, resources, and the right to settle. Legal scholars have considered these questions and have varying predictions on how the concept of property rights will progress as the space race continues.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies went into effect on October 10, 1967. As of the first of this year the Treaty, more commonly known as the Outer Space Treaty, has received the status of ratification, acceptance, approval, accession, or succession by 112 countries. The Outer Space Treaty stresses the idea of exploration to benefit the world as a whole. Article II makes this clear regarding ownership, stating; “[o]uter space; including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, through use or occupation, or by any other means.”
Other notable treaties include, listed in commonly used names, the Rescue Agreement, Liability Convention, Registration Convention, and Moon Agreement. The Moon Agreement is largely similar in wording to the Outer Space Treaty but addresses the issue of resources more directly. Article 11 states; “1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article. 2. The moon is not subject to national appropriations by any claim of sovereignty, by means of use or occupation, or by any other means.” Article 11 further states; “3. Neither the surface nor subsurface of the moon, nor any party thereof or natural resources in place, shall become any property of any State, international governmental or non-governmental organization, national organization or non-governmental entity or of any natural person.” Just 18 nations have provided a status of ratification, acceptance, approval, accession, or succession for the Moon Agreement.
The meaning of the language in Article II of the Outer Space Treaty has been disputed, regarding whether the prohibition on nations owning property is extended to private entities. This split has been considered in the modern context as early as 1997. Prior to this, discussions of this type were limited, but centered around space stations (presumably structures built on a planet, moon, or other celestial body) versus other areas. In the early 2000s, most scholars subscribed to the school of thought that considered Article II as a broad prohibition against property ownership, regardless of nation or private entity status. The legal complexities that go along with the collection of resources have provided additional ambiguity but may also provide more options to private entities when the technology to take advantage of resources can be developed well enough. This poses an additional challenge for private entities, though, as it is difficult to gain the funds necessary for this pursuit with both the dominant interpretation and the ambiguity that is still left in the law.
Predictions for the future of this area of the law verge into recommendations. In the late 1990s and early 2000s, there were ideas of joint governance to abide by a stricter interpretation of the language in Article II of the Outer Space Treaty. Concerns progressed to the stifling of innovation, but also the potential for innovation as a catalyst to change the law. Changes in the law could include legislation like the proposed Space Settlement Prize Act, which would provide monetary support for private entities that settle on certain celestial entities.
In 2020 the United States, along with several other countries, made the stance on resource extraction clear through the Artemis Accords. The Artemis Accords state, under “Section 10 – Space Resources,” “[t]he Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space
Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.” The Artemis Accords are non-binding and both expand upon and clarify the signatories’ interpretations of the Outer Space Treaty. It has been signed by 29 nations.
The largest takeaway from these perspectives is that the current state of the law is ambiguous and will undoubtedly evolve as exploration continues. This is a particularly interesting corner of the law and I look forward to seeing how it progresses in the near future.
About the Author: Claire Cockrell is a third-year law student and Research Editor for the Journal. Cockrell also serves as Justice for the Robinson Chapter of Phi Alpha Delta, Treasurer for the OutLaw Legal Society, and Senator for the Student Bar Association.