Document Type

Article

Disciplines

International Law

Abstract

This article analyzes the terms "use" and "sovereignty" under the Outer Space Treaty (OST) Articles I (2) and II and recommends an amendment to the U.S. Commercial Space Launch Competitiveness Act of 2015 (CSLCA). It also recommends an accompanying shaping of international law to increase investor certainty in space resource extraction and use through the mechanism of private property rights. Tension exists between Articles I and II ofthe OST, the most authoritative source of international space law. Article I requires that the use of space "shall be carried outfor the benefit and in the interests of all countries... and shall be the province of all mankind. "Article II cabins Article I by stating that "Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means[,]" limiting the use of sovereignty to legitimate extraction and use methods, including creation of private property rights. Scholars are divided over whether the OST prohibits creation of private property rights in space resources. Textual interpretation of "use" in Article I and its interaction with OSTArticle II, as well as teleological and intention-based inquiries into the meaning of "sovereignty" in Article II, suggest that the OST does not prohibit the creation of private property rights in space resources. Lack ofclarity on this matter reduces certainty for investors, potentially harming investment incentives for space development. The Commercial Space Launch Competitiveness Act of 2015 (CSLCA) attempts to resolve this problem but likely stretches beyond what the OST permits by allowing the outright sale of space resources. The CSLCA should be amended to more clearly comply with the OST and to reify OST Article I. International law should be shaped to accomplish the same.

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