On February 22, 2024, the Odysseus spacecraft touched down on the moon. It was the first American spacecraft to land on the lunar surface in over 50 years, and, like its predecessors, it carried gear for NASA experiments. But it wasn’t owned by NASA. Instead, it was the product of space exploration company Intuitive Machines, making it the first spacecraft manufactured by a private company to land on the moon.
Intuitive Machines, based in Houston, Texas, might seem like just another player in the seemingly crowded — and growing — private space industry. Companies like SpaceX and Blue Origin, who, like Intuitive Machines, work with NASA to bring astronauts and equipment to space, are also committed to commercial spaceflight, already giving select private citizens a ride into space. Meanwhile, companies like AstroForge are attempting to make extraterrestrial mining a reality. Increasingly, these companies are the ones who own the spacecraft being launched into the galaxy. While each is jockeying for position in the burgeoning market that space is becoming, their earthly establishment is largely based in the American West — a place that, not too long ago, to many people across the globe, felt something like space. A place to be explored, “discovered,” mined, tamed and claimed. A place that could make a person rich. And, ironically, a place that, in the beginning of white settlements, only well-to-do people could access. However, this time, instead of gold and land, the pioneers of space have their sights set on technological advancement and, well, actual space. With so many currently eyeing the cosmos, is space the next frontier in private development?
The ambiguity of the answer lies largely in the murkiness of the ownership — or lack thereof — of space. Questions about ownership in outer space might have previously existed only in science fiction, but took on new importance during the space race that raged after the West’s well-known chapter of early atomic development in New Mexico and during the Cold War between the United States and the Soviet Union, according to science and technology historian Teasel Muir-Harmony. “A lot of these early laws were driven by a fear of nuclear weapons,” says Muir-Harmony, the curator of the Apollo Collection at the Smithsonian National Air and Space Museum.. “But they also dealt with questions of ownership.”
Unlike the plains, mountain ranges, deserts and rivers that unfolded before white settlers as they pushed west, ownership isn’t something that’s able to be claimed in space as of now, due to specific laws outlined in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Commonly called the Outer Space Treaty of 1967, it became the central international pact of space law. Regarding ownership, the language is clear: No one can truly own outer space.
The treaty emphasizes that “no one can claim the territory of the moon or other celestial bodies,” says Muir-Harmony, nor any other part of outer space, including Earth’s orbit. Though the treaty technically only says nations can’t claim sovereignty over space, a country wouldn’t have the authority to let a private company own part of outer space without some kind of claim of ownership themselves, which would violate the treaty. The United States, the Soviet Union and the United Kingdom were among the first countries to sign the treaty, and today, 114 countries have signed and now observe the laws it outlines.
It’s worth noting that the lack of any ownership created by the Outer Space Treaty has caused its own problems. For instance, the treaty says nothing about regulating waste in space, and without any country owning space, no one is responsible for keeping it clean, writes Chris Impey, a professor of astronomy at the University of Arizona. There are over 9,000 satellites and 23,000 pieces of debris in Earth’s orbit alone. That’s not even counting the nearly 100 bags of human waste, 200 tons of trash and the remains of over 50 crashed rockets that litter the surface of the moon.
More than a decade later, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, usually called the Moon Treaty, emerged in 1979. It outlines more regulations around exploring and taking resources from planetary bodies. But unlike the Outer Space Treaty, not a single nation with an active space program signed and passed corresponding laws that would enforce the treaty. “There was concern in the U.S., especially voiced by many space advocates at the time, that agreeing to the moon agreement would discourage investment of private industry in space and inhibit future exploration,” says Muir-Harmony. Since then, how people will choose to preserve space — or not — has been up for debate.
With so many currently eyeing the cosmos, is space the next frontier in private development?
In December 2023, the Biden administration proposed a new framework to Congress to regulate these businesses called the Novel Space Activities Authorization and Supervision Framework. The framework is a first step in regulating what private companies might launch into space: for instance, spacecraft for asteroid mining or space tourism. The secretaries of the departments of Commerce and Transportation would share responsibility for authorizing and supervising new uses of space, though the framework also creates an interagency group that would work with industry to discuss how future endeavors in space might be regulated. The administration also submitted draft legislation to give the departments this new regulating power in November 2023. But Congress hasn’t passed it, and many industry groups object because of what they see as too much government oversight. It’s unclear if or when it might take effect.
Without this kind of future regulation, it might seem strange that countries can control what goes on in space at all — in fact, that regulation might seem similar to a kind of ownership. Having the right to use a space, especially exclusively, is another key concept in how people imagine ownership.
“One of the general ideas about ownership is that you can exclude other people,” says Steve Mirmina, an adjunct professor of space law at Georgetown University Law School. Because no one can own space, current law wouldn’t allow, for instance, an asteroid mining company to prevent another company from mining the same area. But in the interest of safe use, it’s possible that in the long term, policies may change and allow some exclusive access to a part of space — for instance, groups doing research or mining in a certain area.
Regarding ownership, the language is clear: No one can truly own outer space.
Many people have raised questions about the extraction of resources in space before — in fact, they were the subject of the Moon Treaty, says Muir-Harmony. That the United States and other countries never signed on left the subject, largely theoretical at the time, unresolved. Consequently, situations the treaty might have applied to have remained legally ambiguous. For instance, it has been unclear who legally owns the over 800 pounds of lunar samples brought back to Earth from the Apollo missions. At the time they were brought to Earth, no law governed the use of resources from space, and the Outer Space Treaty does not lay out any guidelines for who owns materials brought to Earth from outer space. Still, the United States has always acted as if it owns them.
It’s only recently we’ve begun to revisit these issues. In 2015, the U.S. passed the Commercial Space Launch Competitiveness Act, which allows U.S. companies and citizens to own resources from space. The act was immediately controversial, with some arguing that it violates the Outer Space Treaty by allowing the ownership of a part of space. There’s also the question of how to interpret the law: When might something count as territory versus resources? “I don’t actually know how that gets resolved,” says Matthew Weinzierl, a professor at Harvard Business School who has done research on the economics of the space industry. Interpretations as simple as this are capable of showing the cracks.
It’s unclear how companies like SpaceX, Blue Origin and extraterrestrial mining operations like AstroForge see their role in future space presence and treaty agreements. Deseret Magazine reached out to these companies but did not receive a response from SpaceX, while both Blue Origin and AstroForge declined to comment.
NASA’s upcoming return to the moon as part of its Artemis missions has also prompted the drafting of a set of nonbinding international agreements called the Artemis Accords. The accords reiterate the 2015 law and set up so-called “safety zones” for exclusive study or resource extraction on the moon and other celestial bodies. Like with the 2015 act, those opposed characterize the Artemis Accords as allowing private ownership of celestial bodies in all but name if companies are “saying that (they) can use this area and no one else can,” says Brendan Rosseau, a researcher at Harvard Business School who works with Weinzierl. Despite objections, 39 countries have so far signed the agreement. Still, neither Russia nor China has signed on, highlighting the continued disagreement between people and nations about how we should explore, utilize or even own outer space, says Muir-Harmony.
But really — could we actually mine space? Are companies going to run non-NASA-funded moon missions or launch space hotels? Is space a “frontier” at all? Is all of this discussion even worth it?
Not everyone agrees that we should be concerned about exporting all our earthly problems with ownership into the cosmos. Not for a lack of precedence here, but for a lack of possibility out there.
Not everyone agrees that the world needs new regulations on things like mining in space, or that we should be concerned about humans exporting all our earthly problems with ownership into the cosmos. Not for a lack of precedence here, but for a lack of possibility out there. “I think these claims about resource utilization are greatly exaggerated,” says space historian Dwayne Day. With companies focused on asteroid mining, such as Planetary Resources and Deep Space Industries, having already failed or pivoted to developing other technologies, he also doesn’t see these companies as realistic ventures. From his perspective, claiming land in space would be as meaningful as claiming a remote stretch of ocean without the ability to defend it, regulate it or extract resources from it. Aside from mining rare minerals like platinum, even mining lunar ice, which some suggest could be converted into rocket fuel, would require a vast and unfeasible amount of energy.
Still, these conversations have been a long time coming and are far from resolved. In fact, many of the concerns that sparked the creation of the Moon Treaty were raised by countries that had suffered under colonial rule. “A lot of those advocates for the Moon Treaty were coming from the Global South … and had direct experience with the exploitation of mineral resources in their own home countries,” says Muir-Harmony. The treaty was originally signed by seven countries — Austria, Chile, France, Guatemala, Morocco, the Philippines and Romania. Today, only 18 countries have fully adopted it. “Conversations about the moon and how humans should explore the moon are really closely aligned to these debates about the power structures that have occurred on Earth and whether or not those should be exported to the moon and other celestial bodies,” adds Muir-Harmony.
While the Artemis Accords don’t mention the Moon Treaty, they also don’t propose any change from the Outer Space Treaty regarding strict international regulation around commercial activity or resource extraction. In an executive order accompanying the U.S. signing of the Accords in 2020, former President Donald Trump called the Moon Treaty “a failed attempt at constraining free enterprise.”
Weinzierl believes that exporting our problems into space is a danger, from unequal access to resources to power struggles between nations. But in some ways, it would be better if there were true property rights in space. “If you don’t have some sort of private property rights, it’s really hard to incentivize the development of markets,” he says. Not regulating a market like this could spark more problems, such as unequal access to resources. These resources might include minerals, water and gases, but also access to the cosmic matter these resources are extracted from.
Still, all of that can seem a long way away. As of February, the world’s first privately owned moon lander has been officially declared inactive after it tipped over upon landing. SpaceX and Blue Origin haven’t carried passengers to the moon or Mars, and asteroid mining companies haven’t brought back any resources. For now, space still belongs to everyone and no one, and buying up what it has to offer, whether that’s a right to study it or owning resources taken from it, will remain mostly relegated to the realm of science fiction.
Unless, of course, it becomes real.
This story appears in the June 2024 issue of Deseret Magazine. Learn more about how to subscribe.