Who Owns Space? The Legal Battle Brewing Over Asteroid Mining
By Sam Kole; Photo Credit: Factor-Tech Magazine
According to McKinsey & Company, the commercial space industry is projected to be worth $1.8 trillion by 2035.[1] The legal framework for the rapidly expanding commercial space industry is based on international treaties and agreements that were established over seventy-five years ago.[2] These agreements initially did not focus on commercial space exploration and do not provide a comprehensive legal regime that meets the needs of the current industry.[3] For the space industry to continue growing at break-neck speed, spacefaring nations must work together to chart a new legal regime for commercial space entities and entrepreneurship.
While space mining is the most theoretical sector of the new space economy, it offers the greatest potential to transform Earth’s economy and environment and has the greatest potential for return on investment. Hayden Planetarium Director, Astrophysicist Neil deGrasse Tyson, went as far as to say, “[t]he first trillionaire there will ever be is the person who exploits the natural resources on asteroids.”[4] The promise of untold fortunes in the depths of the galaxy has attracted both governments and their space agencies and private space entities to the exploration and exploitation of asteroids.
The Japan Aerospace Exploration Agency (JAXA) and the U.S.’s National Aeronautics and Space Administration (NASA) have successfully proved the concept of mining asteroids and returning materials back to Earth through their Hyabusa2 and OSIRIs-REx missions respectively.[5] Several asteroid mining startups, such as Asteroid Mining Corporation, TransAstra, and AstroForge, have emerged in the last decade, with some securing upwards of $40 million in venture funding.[6]
While some companies are motivated to mine asteroids for riches, others see asteroid mining as a viable solution to combatting climate change on Earth. The negative environmental impact of mining for rare Earth elements has been well documented.[7] Some see space mining as a high-tech solution to Earth’s climate change crisis.[8] Rare Earth elements are so essential to renewable energy infrastructure that President Biden issued an executive order declaring their procurement as a matter of national security.[9] The U.S. is particularly focused on property rights in space because of national security concerns related to its dependence on foreign suppliers for rare Earth minerals.[10]
The Outer Space Treaty (OST) prohibits national sovereignty over celestial bodies but remains silent on whether private parties or non-state actors are subject to the same restrictions on space exploration, mining, or activities.[11] The central issue is whether the act of extracting or drilling for resources in outer space constitutes a form of appropriation of territorial sovereignty “by any other means.”[12] In the 2015 Commercial Space Launch Competitiveness Act (Space Act), the U.S. clarified its position that private space entities have property rights in the resources they extract from an asteroid but not to the asteroid itself.[13] The Artemis Accords of 2020 (the Accords) has most recently articulated the U.S.’s legal position on property rights in space.[14] The Accords provide that, “[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.”[15]
Meanwhile, Russia and China argue that the ordinary meaning of the OST’s Article II non-appropriation principle and preamble disallow for private space entities to mine celestial bodies as doing so would not be “for the benefit of all peoples.”[16] Some scholars have suggested that, “allowing use by private companies is an extension of national sovereignty because such private companies would be licensed by the state and would pay taxes to such state.”[17]As spacefaring nations push forward, the race for cosmic resources is no longer science fiction. The next decade will determine whether international law accommodates private space ventures— or whether legal battles will stall the industry before it truly takes off.
Sam Kole is a 2L at Vanderbilt Law School. He is from Detroit, Michigan, and graduated from the University of Michigan with a degree in History.
[1] Alizee Acket-Gooemaere, et al., Space: The $1.8 Trillion Opportunity for Global Economic Growth, McKinsey & Company (Apr. 8, 2014), https://www.mckinsey.com/industries/aerospace-and-defense/our-insights/space-the-1-point-8-trillion-dollar-opportunity-for-global-economic-growth.
[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
[3] See Matthew T. Smith, One Small Plot for Man, or One Giant Easement for Mankind?
A New Approach to the Outer Space Treaty’s Property for Mankind Principle, 2020 U. Ill. L. Rev. 1361 (2020).
[4] Katie Kramer, Neil deGrasse Tyson Says Space Ventures Will Spawn First Trillionaire, NBC News (May 3, 2015), https://www.nbcnews.com/science/space/neil-degrasse-tyson-says-space-ventures-will-spawn-first-trillionaire-n352271.
[5] Asteroid Explorer Hayabusa2, Institute of Space and Astronautical Science, https://www.isas.jaxa.jp/en/missions/spacecraft/current/hayabusa2.html (last visited Mar. 6, 2025); OSIRIS-REx Mission, NASA, https://science.nasa.gov/mission/osiris-rex/ (last visited Mar. 6, 2025).
[6] Adam Kovac, VCs See Dollar Signs in Space, Commit $40 Million to Asteroid Mining Company, Gizmodo (Aug. 21, 2024), https://gizmodo.com/vcs-see-dollar-signs-in-space-commit-40-million-to-asteroid-mining-company-2000489355; see Passant Rabie, Asteroid Mining Is the Path to a ‘Shitload’ of Money, AstroForge CEO Says, Gizmodo (Nov. 2, 2024), https://gizmodo.com/asteroid-mining-is-the-path-to-a-shitload-of-money-astroforge-ceo-says-2000517583.
[7] Carolyn Gramling, Rare Earth Mining May Be Key to Our Renewable Energy Future. But at What Cost?, Science News (Jan. 11, 2023), https://www.sciencenews.org/article/rare-Earth-mining-renewable-energy-future#:~:text=Rare%20Earths%20are%20mined%20by,that%20might%20leak%20into%20groundwater.
[8] Alexandra Arneri, The Future Is Stellar: How Asteroid Mining Can Resolve the Climate Crisis, Expand the Economy, and Ensure the United States Retains Its Dominance in Astropolitics, Belfer Ctr. for Sci. & Int’l Aff., Harv. Kennedy Sch., 1, 3 (Dec. 11, 2024).
[9] See Executive Order on America’s Supply Chains, White House (Feb. 24, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/executive-order-on-americas-supply-chains/
[10] Arneri, supra note 8, at 3.
[11] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
[12] Id.
[13] U.S. Commercial Space Launch Competitiveness Act, H.R. 2262, 114th Cong. (2015) (SPACE Act of 2015).
[14] Elya A. Taichman, The Artemis Accords: Employing Space Diplomacy to De-Escalate a National Security Threat and Promote Space Commercialization, 11 Am. U. Nat’l Sec. L. Brief 112, 114 (2021).
[15] The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, NASA, https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf?emrc=653a00 (last visited Mar. 6, 2025).
[16] Treaty on Principles Governing the Activities of States, supra note 11; See Arneri, supra note 8, at 8.
[17] Id.