The age of space resource utilization is approaching, and while some legal challenges exist, they are not insurmountable. A common misconception is that Article II of the Outer Space Treaty (OST) prevents the extraction of space resources. However, this provision bans the appropriation of celestial bodies, not the appropriation of resources once extracted. This interpretation is widely accepted by most countries and scholars.
The Moon Agreement, often cited as a barrier, is not a significant issue because it has been ratified by very few nations. In contrast, the Artemis Accords, signed by key space-faring nations including the U.S., actively support space resource utilization.
Four countries— the United States, Luxembourg, the United Arab Emirates, and Japan—have already enacted national laws that allow for the extraction and use of space resources. These laws provide a framework for space companies to operate, although domestic laws typically only apply within a country’s jurisdiction. Yet, applying national laws to space mining facilities without claiming sovereignty helps create certainty and prevent conflict.
When space companies decide where to operate, their “choice of flag” should be influenced more by factors such as political support and business opportunities rather than differences in the laws of these four countries. Ultimately, state practice will shape the future of space resource utilization.
For more information, Giannoni-Crystal, Francesca, Jurisdictional Choice For Space Resource Utilization Projects: Current Space Resource Utilization Laws, 22 Santa Clara J. Int’l L. 1 (2024), available at: https://digitalcommons.law.scu.edu/scujil/vol22/iss2/1