Space Resource Development and Property - Clarifying Usufruct

Authors

Jeremy A. Kent, United States Air ForceFollow

Abstract

This article examines competing legal frameworks for governing property rights in outer-space resources through a comparative analysis of two distinct approaches: the rule of capture and the concept of usufruct. The increasing interest in commercial space activities, such as mining the Moon and asteroids, has raised questions about the legal frameworks governing property rights in space resources. The growing challenge is that while the Outer Space Treaty (OST) serves as the foundation for space law, it does not explicitly address property rights in the resources humankind increasingly can extract from the space domain.

The rule of capture is a legal principle that allows the first individual to take possession of a resource to obtain ownership. While the rule of capture offers a pragmatic solution, its winner-take-all nature potentially undermines the interests of other space actors. The framework may lead to a race for resources and potential conflicts, undermining the OST’s principles of international cooperation and peaceful uses of outer space. Furthermore, the rule of capture may not adequately protect the interests of non-space-faring nations. In contrast, the usufruct theory, which allows individuals to use and enjoy extracted resources without permanently owning the underlying property from which it originates, presents a more balanced approach, reconciling individual resource utilization with the international community’s stake in preserving resources for future generations.

By examining the Outer Space Treaty’s provisions on stewardship, peaceful use, and equitable access, this article reveals that states have implicitly adopted a usufruct-based approach to space resource development, as evidenced by its provisions on non-appropriation, free access and use of outer space, stewardship duties, and recognition of state jurisdiction over their space activities. State practice, such as national legislation enacted by Japan, Luxembourg, the United Arab Emirates, and the United States concerning private ownership of extracted space resources, further supports the conceptual integration of usufruct within the OST.

However, as commercial space activities expand, the international community must further develop appropriate norms and legal frameworks to balance resource preservation with the economic incentives necessary for responsible space development. It is essential to balance the duty to preserve space resources for future generations with the need to incentivize investment in their development. The concept of usufruct appears to be the most suitable framework for distributing resources from outer space into private hands for the benefit of others. This approach aligns with the OST’s objectives and considers the corresponding interests of all actors in space. However, further legal framework development and international cooperation are needed to responsibly promote commercial expansion and build consensus on the equitable benefit of utilizing space resources for humankind.

Recommended Citation

Jeremy A. Kent, Space Resource Development and Property - Clarifying Usufruct, 90 J. Air L. & Com. 41 (2025)