{"id":60541,"date":"2025-09-23T15:43:35","date_gmt":"2025-09-23T13:43:35","guid":{"rendered":"https:\/\/www.lexia.it\/2025\/09\/23\/space-law-space-mining\/"},"modified":"2025-09-23T15:43:35","modified_gmt":"2025-09-23T13:43:35","slug":"space-law-space-mining","status":"publish","type":"post","link":"https:\/\/www.lexia.it\/de\/2025\/09\/23\/space-law-space-mining\/","title":{"rendered":"Space law: space mining and extraterrestrial appropriation"},"content":{"rendered":"\n

The extraction of resources from celestial bodies, commonly known as space mining, is now considered one of the most innovative and, at the same time, controversial frontiers of international space law. The growing interest from private operators and policymakers has made it essential to conduct a thorough and systematic analysis not only of hard law instruments, such as treaties and international conventions, but also of the most recent soft law initiatives and emerging national regulations. This contribution aims to provide an updated and independent overview of the regulatory framework, highlighting the main challenges and perspectives for multi-level governance, with particular focus on the latest developments.<\/em><\/p>\n\n\n\n

An evolving ban: from article II OST to the need for operational rules<\/h2>\n\n\n\n

The 1967 Outer Space Treaty (OST<\/strong>)1<\/a><\/sup>, ratified by over 110 states, constitutes the cornerstone of international space law. Article II of the OST explicitly prohibits the national appropriation of outer space, including the Moon and other celestial bodies, by states, either through claims of sovereignty or by use, occupation, or any other means. However, the treaty does not explicitly address the legal fate of extracted resources (in-situ resources), leaving room for divergent interpretations and creating a regulatory gap that has led to the adoption of heterogeneous national regulations.<\/p>\n\n\n\n

In the United States<\/strong>, the federal law known as the Commercial Space Launch Competitiveness Act<\/em> of 20152<\/a><\/sup> grants U.S. citizens and businesses the right to own, use, sell, and transport space resources extracted from celestial bodies, provided these activities are carried out in compliance with the international obligations assumed by the United States. While reaffirming formal adherence to the non-appropriation principle, the U.S. legislature effectively introduces a proprietary regime for space resources, without claiming any sovereignty over the celestial body itself (cf. 51 USC \u00a7 51303).<\/p>\n\n\n\n

Luxembourg<\/strong>, on the other hand, has enacted one of the most advanced legislations in Europe on space mining<\/em>, with the law of July 20, 20173<\/a><\/sup>, which declares space resources „susceptible of appropriation“ upon ministerial authorization, subject to strict requirements regarding financial solidity, governance, risk management, and corporate transparency (Articles 6-10). The system also provides for both ex ante and ongoing controls, as well as full liability for the operator in case of damage caused by the mission.<\/p>\n\n\n\n

In the United Arab Emirates<\/strong>, Federal Law No. 12\/2019 establishes a licensing regime for the exploration and use of space resources, promoting public-private collaboration and imposing stringent due diligence, transparency, and insurance coverage obligations.<\/p>\n\n\n\n

These approaches, while not formally violating Article II of the OST as they are limited to mobile resources and not to the celestial body itself, risk generating regulatory fragmentation and phenomena of forum shopping<\/em>, leading to potential tensions between states and significant impacts on space object registration procedures (Article VIII OST and the 1976 Registration Convention4<\/a><\/sup>), as well as on the allocation of liability in case of damage (1972 Convention on International Liability for Damage Caused by Space Objects5<\/a><\/sup>).<\/p>\n\n\n\n

The (partial) failure of the Moon Agreement and the rebirth of soft law<\/h2>\n\n\n\n

The 1979 Moon Agreement<\/strong>6<\/a><\/sup>, which qualifies lunar resources as the „common heritage of mankind“ and conditions their exploitation on the establishment of a future international regime (Article 11), has seen limited adoption, being ratified by only eighteen states and not including any of the major spacefaring powers. As a result, it lacks effective enforceability. In the absence of a binding framework, three main strands of soft law<\/em> have emerged within the international community.<\/p>\n\n\n\n

Firstly, the UNCOPUOS guidelines<\/strong> and the reports of the Working Group on Legal Aspects of Space Resource Activities<\/strong> (2023-2025), developed within the Committee on the Peaceful Uses of Outer Space<\/em> (COPUOS) and the Office for Outer Space Affairs <\/em>(UNOOSA), promote principles of transparency, international consultation, prior notification of activities, and mechanisms for progressive benefit-sharing<\/em>. However, these instruments7<\/a><\/sup> lack binding force and rely solely on the voluntary participation of states.<\/p>\n\n\n\n

Secondly, the Artemis Accords<\/strong>8<\/a><\/sup>, launched by NASA in 2020 and signed by over thirty-five countries, establish shared principles regarding transparency, interoperability, activity registration, and the establishment of „safety zones<\/em>.“ However, these accords leave unresolved the issues of benefit redistribution and multilateral governance of resources. Finally, increasing attention to debris mitigation, planetary protection<\/em>, and ESG due diligence is reflected in the adoption of technical standards, such as ISO 24113:2021 for space debris mitigation, and industry guidelines, which are becoming increasingly important for securing funding and insurance coverage.<\/p>\n\n\n\n

The proliferation of these voluntary regimes, however, risks generating interpretative conflicts and significant legal uncertainty, particularly regarding the legitimacy of the so-called „exclusive usage rights“ (quasi-property rights<\/em>) unilaterally granted by states.<\/p>\n\n\n\n

Perspectives of a „variable geometry“ multilateral regime<\/h2>\n\n\n\n

In light of the profound regulatory divergences and the growing heterogeneity of national approaches, scholars9<\/a><\/sup> have proposed the establishment of a multilateral regime inspired by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS). Such a model would include:<\/p>\n\n\n\n