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How the Rest was Won: Creating a Universally Beneficial Legal Regime for Space-Based Natural Resource Utilization

How the Rest was Won: Creating a Universally Beneficial Legal Regime for Space-Based Natural Resource Utilization

Ian Hedges, J.D. 2015 Vermont Law School

History has demonstrated the United States’ ability to assert rapid control over vast areas of land in a sweeping manner. In 1803, Thomas Jefferson acquired the Louisiana Purchase, doubling the size of the country.Over a century later, Congress passed the Outer Continental Shelf Lands Act of 1953, asserting control over 1.76 billion acres of submerged land. And on September 10, 2014, a subcommittee in the House of Representatives sat down to discuss what could be the beginning of a new era of American property acquisition. The American Space Technology for Exploring Resource Opportunities in Deep Space Act (Asteroids Act) strives to “facilitate the commercial exploration and utilization of asteroid resources to meet national needs,” as well as “promote the right of United States commercial entities to explore and utilize resources from asteroids in outer space, in accordance with the existing international obligations of the United States, free from harmful interference, and to transfer or sell such resources.” More recently, the Federal Aviation Administration (FAA) has mirrored some of Congress’s intentions. The agency plans to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.” In doing so, the FAA acknowledged “the private sector’s need to protect its assets and personnel on the moon or on other celestial bodies.”

Still in its preliminary stages, space law’s scope has yet to be defined. With private space industry on the rise, the need to define space law’s scope is increasingly apparent. Companies like Planetary Resources, with high profile investors including James Cameron and Richard Branson, are already envisioning a “new paradigm for resource discovery and utilization that will bring the Solar System into humanity’s sphere of influence.” Yet this new paradigm—largely influenced by highly developed countries and affluent individuals—tends to focus on the desires of a select few private actors within the industry. These self-interested notions run contrary to traditional principles of space law, which provide for space exploration benefitting all mankind. These competing ideals beg questions concerning property rights allocation in outer space and how to distribute acquired resources from space exploitation.

Part I of this Note will look at the issue of scarcity and its applicability to natural resources in outer space. Part II briefly discusses the types of resources available in outer space. Part III analyzes the current regime of federal and international space-related laws and how they may interact with current systems of property and resource development. In addition, this section explores how current federal public lands paradigms, and other analogous areas of the law, may cooperate with evolving space law. Lastly, Part IV provides recommendations on how space law can ultimately promote not only a deeper understanding of the cosmos, but also the knowledge of how to garner resources responsibly, benefitting humankind from the depths of a little-known frontier.

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