Introduction

We are witnessing today a new era in the conquest of space. Space-faring nations are once again rushing to the Moon, as exemplified by the US and China with their Artemis and Chang’e programmes.^[1] Yet states’ quasi-monopoly over space exploration is increasingly challenged by the private sector. Since 2020, SpaceX operates human flights for NASA, marking the first time humans have been launched into space via private commercial spacecraft rather than state ones.^[2] Silicon Valley billionaires dream of colonising space and terraforming planets to turn humanity into an “interplanetary species”.^[3] With Goldman Sachs’ assurance that space mining is now “more realistic than perceived”,^[4] space mining start-ups like the British Asteroid Mining Corporation and the US AstroForge multiply plans to mine asteroids.^[5] Huge sums are at play: Bank of America estimates that the space industry could be worth 1.4 trillion dollars by 2030.^[6] Yet investors’ feverish optimism is somewhat reined back — not so much by the technological challenge of reaching outer space but by the inherent difficulty of determining ownership over space resources and activities.  

According to the current international legal framework that governs human activities in space, outer space and its precious resources have been consecrated as one of humanity’s commons, along with the deep sea and Antarctica. Space venture capitalists have battled against this status that de facto limits the expansion of the private sector into space. They have found precious institutional and ideological supports in their crusade to introduce private ownership over space resources and lands. Today, they are about to succeed in their effort to dismantle and privatise one of the last remaining commons of humanity.  

Why should the left fight to protect the common ownership status of space? This scene-setting report goes back to the New Space lobby’s attack on international space legislation to open a larger debate on how space can be developed in ways that guarantee shared prosperity and the flourishing of all people and future generations.  

What International Law Says

The international space regime is currently organised around five main UN treatises:  

• The Outer Space Treaty;^[7]
• The Rescue Agreement;^[8]
• The Liability Convention;^[9]
• The Registration Convention;^[10]
• And the Moon Agreement.^[11]

Elaborated between 1966 and 1979, these treaties bear the imprint of the Cold War and its precarious equilibrium of power. To ensure no countries would gain an outsized strategic advantage on their ideological adversaries, states’ negotiators have conceptualised outer space as a neutral and demilitarised zone belonging to no one and everyone. The 1967 Outer Space Treaty (OST) and 1979 Moon Agreement are of particular interest in this regard. Both provide outer space with the status of humanity’s commons.  

The OST defines space as “the province of all mankind”, guaranteeing free exploration and use of space by all states, “without discrimination of any kind”, as well as “free access to all areas of celestial bodies” (Article I).^[12] Article II also stipulates that “outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. This ambiguous formulation is today at the heart of great controversy regarding the New Space lobby and its neoliberal allies’ attempts to reinterpret international space legislation. Is the treaty simply banning appropriation by states or does it prevent all forms of appropriation? Is the ban solely for the appropriation of space land or can space resources be appropriated once removed from their natural environment? Until recently, the treaty has been interpreted as preventing all forms of appropriation of space resources and land, as states traditionally remain the legal guarantors of private property rights. But this is about to change.

Negotiated a decade after the OST in the context of the New International Economic Order sponsored by the Group of 77 representing developing and non-aligned countries at the United Nations General Assembly, the Moon Agreement attempted to radicalise the measures the OST set forth.^[13] The Agreement defines the Moon as the “heritage of all mankind”,  here using a legal principle developed in international legal debates in the 1960s (and used, for instance, in the 1982 Law of the Sea Convention (LOSC)).^[14] While aiming to protect the interests of future generations, the common heritage-based regime generally opens the door to claims of redistribution between space-faring and non-space-faring nations. The Agreement specifically calls for the exploration of the Moon to “be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development”, and mandates an “international regime” to rationally manage and redistribute its resources among all countries.^[15] From its inception, the Agreement was targeted by the forming New Space lobby because of its progressive (and revolutionary) stance. In the US, the L5 Society – bringing together space enthusiasts and space entrepreneurs in support of space colonisation – campaigned against it and succeeded in preventing its adoption in 1980.^[16] In response, the other space-faring nations have also refused to ratify the treaty. At the time of writing, only 17 nations have ratified the Moon Agreement – making it effectively a dead letter.^[17] It has even lost one member (Saudi Arabia) in the last year – a clear sign that the already-fragile legal system guaranteeing space’s status as humanity’s commons is currently under threat.

[.fig]Figure 1: The International Space Regime Has Established Space as a Commons of Humanity[.fig]

[.notes]Source: United Nations Office for Outer Space Affairs.[.notes]

An Ideological Attack on the Commons

Today, we are witnessing an attempt by the New Space corporate lobby and its ideological and institutional backers to extend the structures of ownership that exist on Earth to space. It is about transferring resources currently held in common into the hands of a few individuals. The result: the expropriation of space will transform into the amplification of corporate power and increasing inequality on Earth.

Corporate push

Corporate pressures against the international space regime are not new. Space venture capitalists — organised around space advocacy groups like the L5 Society or the National Space Institute, which merged in 1987 to form the National Space Society — have been vocal in their opposition to the international space regime since the 1970s and have found institutional support to relay their concern.

Space industrialists are actively involved in the current attempt to redefine international space legislation and governance to suit their interest. To give three examples:  

• At the United Nations, the UN Committee on the Peaceful Uses of Outer Space (COPUOS) is currently conveying a working group on the legal aspects of space resource activities with the aim of finding a future international agreement on the issue. While state members have been invited to submit their recommendations regarding the mandate and purpose of the working group, some non-governmental organisations have been granted permanent observer status with COPUOS, which allows them to also submit their views on potential legal models for space resource utilisation. They can thereby influence future negotiations.^[18] These include New Space advocacy groups like the National Space Society or the Moon Village Association, both of which have space entrepreneurs and venture capitalists in their boards of directors.^[19] Under the guise of representing global civil society, they thus tend to speak for the New Space industry.
• In the UK, the British and Scottish governments have been eager to attract space investors and industrialists, with the latter expressing the ambition to make Scotland the “home of New Space”.^[20] The UK 2024 Space Regulatory Review, drafted after consultation with New Space actors, suggests further adapting domestic licencing regulations to the needs of the space industry via the use of innovative regulation tools like sandboxes and testbeds.^[21] These tools allow regulatory relaxations for innovative industries in nascent markets like space. British space industrialists have also expressed clear ambition to influence UK space regulations. In 2018, Mitch Hunter-Scullion, the CEO of UK-based Asteroid Mining Corporation published on its website a draft for a UK Space Resources Activities Bill, which proposed to recognise the “right to possess, own, transport, use and sell over the extracted space resources”.^[22] While the draft bill was a clear PR stunt and has since disappeared from AMC’s website, Hunter-Scullion — who presents himself as a “registered lobbyist for the space industry”^[23] — has also become a decision-making member of the Hague Space Resources Governance Working Group, a group bringing together industrial leaders, scientists, diplomats, and legal experts from across the globe to address the perceived absence of an international legal framework for the use of space resources.^[24]
• The Hague Working Group is another instance of the private sector working hand in hand with governmental actors (and academia) to push space resources into private hands. Along with states at the forefront of the commercialisation of space — namely, the US, Luxembourg, the United Arab Emirates and Japan — decision-making members have included representatives from the space industry. These include space ventures like AMC, Japanese ispace Inc. and US MAXAR Technologies, but also influential individuals operating in New Space corporate circles like Sagi Kfir, a legal expert currently working for the SpaceFund (an early-stage venture capital investment fund), who previously worked for Jeff Bezos’ Blue Origin and for Deep Space Industries.^[25] As discussed later, in November 2019 the Hague Working Group adopted a series of proposals allowing for the appropriation of space mining resources. While the Hague Working Group’s recommendations do not constitute international law, they have been sufficiently influential to relaunch the international debate on the legalisation of space resources appropriation.  

Neoliberal think tanks on the move

Crucially, the corporate push against the status of space as the heritage of mankind has been supported by neoliberal networks since the early 1980s, when US neoliberal and libertarian think tanks started to multiply reports and opinion pieces on the topic.^[26] L5 Society’s founder Keith Henson, and space entrepreneurs like James C. Bennett were, for instance, invited to publish articles against the international space regime in Reason, a magazine attached to the Reason Foundation.^[27]  

US neoliberal think tanks’ commitment to the New Space cause and the commercialisation of space remains very active to this day. Illustrating this continuing partnership, Bennett co-authored with Jeff Greason (another space entrepreneur with institutional connections) the Reason Foundation’s 2019 report on “The Economics of Space”.^[28] Neoliberal think tanks have also been prompt to actively defend the cause of leading private space entrepreneurs under regulators’ scrutiny. TechFreedom’s counsels, for instance, repeatedly filed amicus briefs in support of Elon Musk’s SpaceX before the DC district’s Court of Appeal (e.g. in 2021 and 2023).^[29] On top of the plethora of reports and opinion pieces they routinely produce, neoliberal think tanks like TechFreedom have used their perceived legal expertise to influence the making of tech policy regulations. They spontaneously answer requests of information and comments issued by governmental agencies,^[30] provide testimonies as legal experts in front of US Congress’ specialised committees^[31] and draft letters to members of Congress to propose technical bill amendments.^[32]

Neoliberal think tanks’ hostility to the international space regime has a strong ideological dimension. They have battled for decades against the “common heritage” principle and its redistributive ambitions, which Cato Institute Senior Fellow Doug Bandow has likened to a plot inspired by “largely socialist dictatorships” to “guilt the West into transferring vast resources to their treasuries”.^[33] The architects of the neoliberal project have historically prioritised the defence of private property and ownership, supporting a massive global effort to shift ownership from public to private hands. As such, the neoliberal think tankers view the OST and Moon Agreement’s sanctuarisation of space as a threat to the constitution of strong private property rights in space. Building on Garrett Hardin’s theory on the “tragedy of the commons”, they argue that the “common heritage” principle will lead to the waste and depletion of space resources.^[34] Only private ownership, they believe, guarantees a genuine interest in stewarding a resource in the long term,^[35] or at least ensures that scarce space resources — from geostationary orbits for satellites to rare earth materials — are efficiently used.^[36] Lastly, assigning exclusive ownership rights, which come with a right to extract profit from the owned resources, is the only way to make it worthwhile for visionary space entrepreneurs, like Musk, to internalise the enormous costs of private space ventures and thereby unlock the prodigious promise of space development.^[37]  

The neoliberal proposals for strong property rights in space are miscellaneous. For the most libertarian — like Peter Lothian Nelson and Walter Block — international space legislation should be simply axed.^[38] Others propose to preserve but “neutralise” the OST because it provides the foundation for international space law’s follow-up treaties, which the US government should see as furthering its own interest. Rand Simberg (Competitive Enterprise Institute) proposes exploiting the OST’s ambiguities to avoid lengthy renegotiations: the treaty only bans national but not private appropriation.^[39] TechFreedom invites the US legislators to prioritize creating an attractive domestic legal regime supporting private enterprise that other states will want to emulate.^[40] The Reason Foundation advises concentrating on binational agreements between space-faring nations sharing similar interests.^[41]  

British neoliberal think tank networks have recently started to follow the example of their US counterparts. In a more conceptual 2022 policy paper for the Adam Smith Institute, for instance, Rebecca Lowe describes space colonisation as a unique opportunity to reconstruct property rights regimes (which, she acknowledges, have been tainted on Earth by a long history of property-related injuries, starting with colonial dispossession) on a morally justified basis. She proposes to create a competitive and market-driven system of rent in which an international committee will allocate plots of lunar land on a temporary basis to entrepreneurs who shall prove their commitment and ability to enhance it.^[42] Lowe’s report has been preceded by a series of short publications supporting the privatisation and commercialisation of space in CapX, an in-house policy blog attached to the Centre for Policy Studies, with posts by Rebecca Lowe, Helen Barnard, Andrew Lilico and Nicolas Bouzou.^[43] Mark Littlewood, the former Director General of the Institute of Economic Affairs, wrote an opinion piece in The Times in 2022 singing the praises of space venture capitalists, and Policy Exchange has a dedicated Space Unit since 2019.

The promises of space development

Neoliberal think tanks’ justification for shifting ownership of space resources from public to private hands is that humanity’s future depends on the efficient development of space activities and that this is only achievable through privatisation.  They do not hesitate to instrumentalise the current climate emergency to raise the stakes, – which is rather ironic considering most of these think tanks (the Competitive Enterprise Institute chief among them) are famous for peddling climate change denial.^[44]

Neoliberal think tanks’ reports often insist on the (potentially lucrative) presence of rare earth materials on celestial bodies — materials that are scarce on Earth but which are also used to manufacture lasers, chips and batteries and are therefore highly strategic. Mining on Earth has a clear negative environmental impact for local populations and thus a high social cost. Mining space resources instead would transfer polluting mining activities into “airless, lifeless places”.^[45] It is thus (almost!) an act of social justice. Other hazardous but promising scientific activities — such as advanced fusion or the manipulation of viruses — could also be moved off-Earth.^[46] One could also develop solar energy as an alternative to fossil fuel and “without the economic devastation forecast” associated to the sole use of “terrestrial renewables”.^[47] More puzzling propositions involve sending nuclear waste on Venus (aboard private rockets, of course!), a planet whose atmosphere is already toxic to humans, and which could therefore not be more polluted than it already is.^[48] The risk of nuclear convoys exploding in Earth’s atmosphere is dismissed as the “risk would shrink as the private sector moves further into space transportation”.^[49]  

Space — and space colonisation and terraforming in particular — is part of the arsenal of (energy hungry) market geoengineering solutions put forward by neoliberal think tanks to deal with climate change without challenging current capitalist modes of production. For Policy Exchange’s former Chief Economist Andrew Lilico, it might ultimately make more economical sense to let the planet burn if it gives industries, and especially the most polluting ones like space manufacturing, the space they need to innovate, as they might stumble upon the technology that will save us all in the future. Is it more efficient to spend “$3-trillion on preventing the Earth heating up by 3C over the next 150 years” or to spend it on making “Mars a blue planet”?^[50]  

An Institutional Attack on the Commons

The New Space lobby and its neoliberal allies’ coordinated attack on the “common heritage” status of space has started to bear fruit.

In the US

The US has been at the forefront of this push to transfer space resources into private hands. In 2015, Congress adopted the Commercial Space Launch Competitiveness Act, which “promote[s] the rights of United States citizens to engage in commercial exploration for and commercial recovery of space resources”^[51] and thus opens the way to recognising appropriation of space resources by individuals and commercial entities. It also circumvents the constraints set by the OST by stipulating that the US will not thereby assert sovereignty or jurisdiction over any celestial body.  

In April 2020, President Trump followed up with an executive order stipulating that the US “does not view [outer space] as a global common” and will “encourage international support for the public and private recovery and use of resources in outer space”.^[52]  

Finally, in October 2020, the US along with seven other founding members (including Luxembourg, the United Arab Emirates and Japan (all three having also introduced legislations on the commercial exploitation of space resources by private entities, respectively in 2017, 2019 and 2021) — and the UK) signed the Artemis Accords, which endorse the bilateral agreements strategy neoliberal think tanks also favour. Under the objective of establishing a framework for cooperation in the civil exploration and peaceful use of the Moon, Mars and other astronomical objects, the accords sanction the US reinterpretation of the OST.^[53] Specifically, they guarantee a right to extract and appropriate abiotic resources like minerals and water, under the reasoning that extraction “does not inherently constitute national appropriation under Article II of the Outer Space Treaty”.^[54] It differentiates between resources — which can be extracted, transported and therefore appropriated — from territory, which cannot. It also creates “safety zones” of non-interference and exclusion around areas of (for instance, mining) operations.^[55] Crucially, the US have conditioned states’ future collaborations on NASA-led projects (such as the current Artemis Program of Moon exploration) to their compliance with the principles set forth in the Artemis Accords.^[56] At the time of writing, 43 states have signed,^[57] thus reinforcing the US push for the introduction of private property principles in space by making it international customary law.  

In the world

The Artemis Accords are only the last iteration of a coordinated effort to reinterpret international space law in favour of the private sector. They build on the work of the Hague Space Resources Governance Working Group, mentioned above, and specifically on the list of 20 recommendations for the development of an international framework on space resources the group presented to states and international organisations in 2019. The Artemis Accord’s concept of “safety zones”, as well as its differentiation between extractable space resources to be lawfully acquired “through domestic legislation, bilateral agreements and/or multilateral agreements” and space land protected by the OST, are all already outlined in the Hague Working Group’s recommendations.^[58] The working group also suggest providing “priority rights” for “an operator to search and/or recover space resources” and make further provision to protect intellectual property rights (e.g. by limiting the ability for other states to freely inspect an operator’s facilities as guaranteed in the OST). The text thus answers the historical demands of private space actors, guaranteeing their ability to exclusively profit from their ventures. Additionally, the OST and Moon Agreement’s provisions for collective ownership and resource redistribution are emptied of their substance and replaced by a commitment to help developing countries build up their capabilities through exchange of information, joint ventures and training. Compulsory monetary benefit-sharing is explicitly ruled out and replaced instead by the vague recommendation that “operators should be encouraged to provide for benefit-sharing”. The constitution of an international fund is also mentioned but without provision for its funding sources.^[59]  

The Hague initiative pressed COPUOS to start its own working group on the legal aspects of space resource activities (see above). State members have submitted their proposals since 2022, documents which provide  good insight into the current legal debate.^[60] States at the forefront of space privatisation like the US, Luxemburg and Japan defend their reinterpretation of the OST. On the contrary, as the manifestation of the ongoing new Cold War, Russia and China have turned themselves into the defenders of the OST and Moon Agreement. Russian negotiators, for instance, stress space’s status as res communis as opposed to terra nullius to restate that, according to international law, “the surface or subsoil of celestial bodies cannot be regarded as the property of any State, international organization, state organization, non-governmental institution, private company or individual”.^[61] They overtly criticise the “initiatives of certain States” who “vest their non-governmental persons, citizens and entities with the right to mine, appropriate, own, transport and sell the mineral resources of celestial bodies”, reminding all that “the national law of any State cannot extend to territories outside its jurisdiction”. They also voice their concern against the deployment of vast multi-satellite constellations (here implicitly targeting Musk’s SpaceX), obstructing other states’ free access to outer space and use of the orbital frequency resource as guaranteed by the OST. Lastly, they demand COPUOS’ working group to find ways to ensure “the equal and equitable sharing of the benefits arising from the exploitation of space resources”.

In the UK

While the UK is a founding member of the Artemis Accords, it has maintained an ambiguous position when it comes to the legal recognition of property rights on outer space resources. The policy documents recently published by the last UK governments, including the 2021 National Space Strategy (NSS), the UK Space Agency’s 2023 Technology Roadmap and the UK Department for Science, Innovation and Technology’s 2024 Space Regulatory Review, carefully work around the issue. For instance, the 2021 National Space Strategy (NSS) does mention space resource utilisation as a significant future commercial market but does not include it in its initial focus area. Instead, it privileges the development of public-private partnerships in the context of state-led spatial exploration for scientific purposes.^[62] This entails prioritising launching capabilities through the creation of spaceports in Cornwall and Scotland, with the ambition for the UK to become leader in commercial small satellite launch in Europe by 2030. Priority is also given to manufacturing markets (e.g. satellite manufacturing) to make the UK the leader of space sustainability technologies like space debris removal. In accordance with this priority, the UK government’s regulatory effort has focused not on the legal recognition of property rights in space but on creating a licencing system for spaceflight operators and spaceports^[63] as well as on supporting the creation of long-term space sustainability guidelines at the UN.^[64]  

Despite this, the UK has so far avoided creating a licencing system for the commercial exploitation of space resources, unlike the US, Luxembourg, the UEA and Japan, which are all also founding members of the Artemis Accords. For instance, the 2024 Space Regulatory Review does mention the UK’s participation in international discussions on lunar regulatory issues and space resource utilisation through COPUOS and the Artemis Accords, but doesn’t elaborate further.^[65] Instead, it suggests that the UK is currently prioritising in-orbit servicing and manufacturing markets to better understand the “requirements needed to support innovation and novel applications” and accordingly adapt its future legislation.^[66] It will use the conclusions to tackle the issue of space resource utilisation at a later stage — a way to temporarily deflect the problem.  

The UK’s ambiguous position is summarised by its 2023 proposal for COPUOS’ working group on the legal aspects of space resource activities.^[67] In this submission, UK negotiators reassert their understanding that the OST explicitly allows for the use of space resources for scientific purposes, thus implying that the treaty does not currently provide for commercial use. Nevertheless, they argue that the treaty does not rule out the possibility for states to mandate private actors (e.g. SpaceX) to help them return “regolith to Earth for scientific investigation”. The UK negotiators argue that the COPUOS working group should first secure international consensus on the utilisation of space resources for scientific purpose, before “attempting to find consensus on a regime to control for-profit mining activities of/on celestial bodies”. While they seem here to implicitly distance themselves from their Artemis founding partners’ decisions to domestically legislate on space resources utilisation, the UK Space Agency Roadmap (also published in 2023) takes the Artemis Accords and their reinterpretation of the OST as its “standard”, adding an extra layer of ambivalence.^[68] Similarly, the 2024 Space Regulatory Review endorses the US strategy of bilateral agreements consisting in the mutual recognition of aligned domestic space regimes.^[69]  

Are the UK negotiators buying time because, as they state in the COPUOS submission, “there is currently no viable commercial model for the extraction of space resources and returning them to Earth for sale”?^[70] There is certainly a lot of pressure for the UK to legislate on the question of private property rights in space: as Dr Rossana Deplano wrote in her 2021 written evidence to the UK Parliament’s Select Committee on UK space strategy and UK satellite infrastructure, if the UK does not do so, “UK companies will seek more favourable jurisdictions to conduct their business”.^[71]

Conclusion: Why Should We Protect Space as One of the Last Commons?

Outer space is a rare case where the legal and institutional infrastructures of common ownership and commoning of resources already exist. Yet, as discussed throughout this scene-setting report, these infrastructures are increasingly eroded due to the pressures of New Space corporate lobbies and their ideological and institutional supports. We are currently witnessing a global push from proponents of the neoliberal project to transfer the ownership of one of the last commons of humanity into private hands, as they conspicuously have done so with other resources held in common since the end of the 1970s.  

We need to collectively resist this movement of space enclosure, a dynamic which, on Earth, has been at the heart of the impending ecological catastrophe we now face. If current corporate efforts to rewrite international law succeed, precious space resources will be attributed on a first come, first served basis, which can only favour rich space-faring nations like the US, and stratospherically wealthy individuals like Elon Musk and Jeff Bezos, who can already afford partaking in space ventures.^[72] This can only deepen the stark inequalities already existing on Earth today.

There is certainly a need to clarify the regulatory framework around the utilisation of space resources. Without indulging in the megalomaniac and energy-hungry geoengineering solutions the neoliberal right advocates, the current climate emergency might require us to include space and its resources in our plans for a sustainable future. But how can this be done without falling into a sci-fi re-enactment of primitive accumulation via colonial enclosure?

Today, the neoliberal right and its corporate allies are on the move. Like the Adam Smith Institute, they multiply proposals to impose private property in outer space. They are already active members of institutional forums that aim to short-circuit the UN and force new regulatory frameworks that favours private investors. The left should not leave the initiative to them, nor fall into the pitfalls of fully automated luxury communism’s accelerationist agenda. How should the left resist the current rewriting of international space law? What are the possibilities and scope for a genuine democratic intervention in the space economy? How can the left ensure that space resources currently held in common are used while respecting the environment and guaranteeing a fair and effective redistribution of its riches?

There are alternatives to private land ownership and resource use. We need to create a system that can capture the value created from the use of natural resources for the benefit of communities, workers and the environment. We must build on the current regime of common ownership of space resources to construct a post-carbon economy that treats space land and resources as a precious asset critical to the flourishing of all people and future generations. Outer space’s status as humanity’s commons can help us to think of new models of stewardship to re-embed the economy in nature and end the false separation of the economic from the environmental.