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Abstract

Law can be both a catalyst and consequence of technological change. Nowhere is this fact more clear than in the realm of space law. Man’s initial ascent to space was manifested not only through scientific discovery, but also through legal innovation, as both a means of keeping up with and shaping the use of outer space. During the initial period of space exploration, legal norms were developed in a world of state actors, designed to promote the continued peaceful use of space and to prevent claims of dominion or sovereignty. Since that time, further technological development and shifts in economic ideologies have shifted the focus from government-based exploration to private entity-based exploitation, particularly with respect to the moon and other celestial bodies. This article evaluates the legal landscape in outer space. Interested parties maintain three legal positions in relation to the exploitation of extraterrestrial resources located on such bodies. The first holds that we need to revisit space law in order to create the legal certainties required to harness the innovatory capabilities of the private sector, citing the need for real property rights to successfully achieve this end. The second, asserted by an increasing number of “entrepreneurs”, claims that space law does not prevent private citizens from claiming ownership of extraterrestrial real estate. While these claims are bogus, attempts at enforcement and a growing belief in their validity may retard the development of legitimate commercial ventures. The third position, principally held by developing states, is the benefits derived from extraterrestrial resources should be shared by all, and that a mechanism for the equitable redistribution of such benefits needs to be put in place. The article argues that the current regime is largely adequate to deal with issues of outer space. However, the law is unclear in relation to the level of resource extraction permitted by the Outer Space Treaty. It further argues that, while the issue is not imperative, this situation is undesirable in the long term, and examines past controversies in outer space law to determine an ideal path towards the resolution of the issue.

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