Corporate Attributed Lawmaking under the Outer Space Treaty of 1967

Matthew Lively

 

ABSTRACT: The Outer Space Treaty of 1967 (‘OST’) bars national appropriation of celestial bodies in space. Many authoritative interpretations agree that this includes asteroids. The bar and the general constraints and ambiguities of the OST have stymied commercial space development for the past several decades. One such ambiguity is that the use of outer space ‘shall be the province of all mankind’. The United States’ passage of the Commercial Space Launch Competitiveness Act of 2015, which recognized private property rights in space resources in private individuals, is part of a space law paradigm shift. In an increasingly multipolar and destabilizing geopolitical environment, where treaty practice and customary international law may again take primacy over treaty making, the United States’ position might become the dominant one. The principle of limited private appropriation in space has been adopted by a few other countries but has principally been espoused by private corporations through what Professor Melissa Durkee calls ‘attributed lawmaking’. These corporations have focused their interpretation of the OST on Article II and property rights. Interestingly, corporations have been silent on Article I’s statement that ‘The…use of outer space…shall be the province of all mankind[]’ and Article II’s definition of ‘celestial bodies’. This article provides two arguments that corporations could employ to advance a more holistic and commercial-friendly interpretation (particularly for asteroid mining) of the OST: Article I might not prohibit private ownership of space resources if that ownership ameliorates global challenges and Article II’s definition of celestial bodies may not include asteroids.