Outer Space – Rights & Resources

Outer space was once the domain of two superpowers pursuing military and scientific goals. Today it is crowded with commercial satellites, private rockets, paying passengers, and new national space programs, and companies plan to extract water and minerals from the Moon. The governing treaty dates from 1967, when none of this was on the agenda. Who owns the Moon and what is taken from it, who may build a base and keep others out, and who pays when something goes wrong?

In this TalksOnLaw interview, Joel Cohen sits down with Professor Frans von der Dunk, the Harvey and Susan Perlman Alumni and Othmer Professor of Space Law at the University of Nebraska College of Law and a longtime adviser to governments and international organizations, to examine how the Outer Space Treaty and customary international law apply to lunar bases, resource extraction, space debris, liability, space tourism, and military uses of space.

A Crowded, Commercial Frontier

The space era began with two countries and two purposes, von der Dunk explains: military and political advantage, and science. Since then, satellite communications, remote sensing, and navigation have become essential on Earth, satellite numbers have grown exponentially, and China, India, Europe, and others have joined. Because private companies are in it for profit, he says, they may neglect broader public interests in science, security, safety, and the environment.

Who Owns the Moon?

Nobody, von der Dunk says, or more precisely, the community of states together. Under the Outer Space Treaty, no state may appropriate any part of the Moon or any other celestial body, from planets to small asteroids. The treaty created no international authority. Like the high seas, space is a global commons open to all states that follow international law, and private companies share that freedom only with their state's authorization. The 1979 Moon Agreement tried to create a regime like the one for deep seabed mining, but the major spacefaring nations never joined.

Cohen asks: if Botswana built a lunar headquarters, could the United States build in the middle of it? Authorized U.S. representatives could visit to confirm that Botswana was not violating the ban on military installations, von der Dunk explains, but they could not occupy the building. A station does not confer ownership of the ground, and a site abandoned for years might eventually be open to others. Asked whether that amounts to lunar adverse possession, he says U.S. doctrine cannot be transplanted to the Moon, but the common denominator among legal systems points the same way: you may use the land, but you cannot keep everyone out forever.

Safety Zones, Space Debris, and Customary Law

The treaty does not mention safety zones, partly for fear that a zone would slide into a territorial claim. But a modest zone, perhaps 150 meters rather than 20 miles, may be a reasonable precaution. What matters legally is how other states react. If they accept and copy it, customary international law can form, as happened with the law of the sea before it was codified.

Space debris shows the same process. The treaty imposes no duty to avoid creating debris or to clean it up, and von der Dunk notes that no rule barred India from destroying its own satellite in 2019. But the United States, the United Kingdom, and France now turn nonbinding debris mitigation guidelines into binding license conditions, such as end-of-life disposal plans. As more states follow, a customary obligation may emerge. He sees the Artemis Accords, NASA's framework for partners in its return to the Moon, as a possible nucleus for similar norms, including against polluting the Moon.

Water, Minerals, and Mining Rights

The main prizes are water, for drinking and rocket fuel, and minerals for building habitats from local materials. The far side offers radio silence for astronomy, and polar craters may hold ice. First arrivals will have an advantage, but if safety zones are limited to what safety requires, von der Dunk expects room for several stations to tap the same deposits, though latecomers may be left with crumbs.

Whether extracted resources can be owned remains politically open. The United States recognized rights in resources recovered by licensed U.S. companies, and Luxembourg and the United Arab Emirates followed with laws he helped advise on. Article II, he explains, can be read as leaving space open for all to use, including by extracting resources, or as making the resources the common property of all states, as Russia argues. He considers the Russian reading legally weaker, but while some states hold it, the issue remains political. Companies also need legitimacy, he adds, or their product may be treated like blood diamonds, which is why Lockheed Martin pursued seabed mining through a British subsidiary licensed under the Law of the Sea regime.

National Licensing and State Liability

The treaty requires states to authorize and continuously supervise private space activities. In the United States, the Federal Aviation Administration licenses launches and reentries under the Commercial Space Launch Act, the Federal Communications Commission licenses satellites, and the Department of Commerce licenses remote sensing. Which agency should license mining is still debated. Could a "Panama of space" offer cheap licenses? Von der Dunk thinks it unlikely. A launch is the riskiest phase of a mission and happens over the licensing state's own territory, and states are internationally liable for damage their private operators cause. If a U.S.-licensed rocket crashed in Mexico, Mexico could claim compensation from the U.S. government, which is why states demand safety showings and insurance.

Space Tourism and Rescue

Von der Dunk distinguishes orbital tourism, which began with Dennis Tito's roughly $20 million week on the International Space Station in 2001, from suborbital flights, which he calls "sophisticated bungee jumping." Suborbital flight raises a new question: the operator's liability to its own passengers. Congress, he explains, chose something like the skydiving model, requiring passengers to give informed consent acknowledging that the vehicle is not government-certified as safe. The rescue treaties were written for government astronauts, and he doubts states owe wealthy tourists extraordinary rescue efforts, though a general humanitarian duty to do what is reasonable remains.

Military Limits and the Space Force

The treaty bars military bases, installations, and maneuvers on celestial bodies. In orbit, only weapons of mass destruction are banned, so military reconnaissance, communications, and navigation are lawful. Asked about the Second Amendment on the Moon, von der Dunk says military weapons are barred regardless of U.S. law. He views the new U.S. Space Force as largely a bureaucratic reorganization with political rather than legal implications, unless it meant bases on the Moon or nuclear weapons in orbit.

What to Know Now

The Artemis Accords, signed by eight nations in 2020, had 76 signatories by September 2026 and state that resource extraction is not in itself national appropriation. Japan adopted a space resources law in 2021, and a UN working group circulated draft principles for space resource activities in 2025, aiming to finalize them in 2027. China and Russia lead a rival International Lunar Research Station. Supporters call the Accords a faithful application of the Outer Space Treaty; critics, including Russia and China, see a U.S.-led effort to set rules outside the UN. Firefly Aerospace made the first fully successful commercial lunar landing in 2025. A 2025 U.S. executive order directed the Commerce Department to propose a "mission authorization" process for novel activities no agency clearly licenses, and Commerce issued a proposal in March 2026. Suborbital tourism began in 2021 but is now paused at both Virgin Galactic and Blue Origin, while private orbital missions have multiplied.

Debris rules have tightened: in 2022 the FCC required low Earth orbit satellites to deorbit within five years of mission end, and Russia's 2021 anti-satellite test created more than 1,500 pieces of trackable debris. Two details are worth adding. First, there is a precedent for a state paying for space damage: after the Soviet satellite Kosmos 954 scattered radioactive debris over Canada in 1978, Canada claimed under the Liability Convention, and the Soviet Union paid C$3 million in a 1981 settlement. In 2024, NASA also paid about $44,000, without admitting liability, after space station hardware struck a Florida home. Second, federal law requires informed consent and waivers of claims against the government but does not itself shield operators from passenger suits, which some state statutes limit, and the time-limited provision is a moratorium on FAA passenger-safety rules, now extended to 2028.