Res Communis Omnium v. Res Nullius in U.S. Space Mining Law & Policy: A Multilevel Theoretical Analysis of U.S. Public Policy on Space Minerals Mining Under TITLE IV, §51301- §403, U.S. 2015 Commercial Space Launch Competitiveness Act (Public Law 114-90) & Its Implications for International Space Law Under Articles I & II, 1967 Outer Space Treaty
Helms School of Government
Doctor of Philosophy in Public Policy (PhD)
Boleslaw Z. "Bolek" Kabala
space mining, asteroid mining, space policy, space law, Articles I & II, 1967 OST, non-appropriation, exploitation, cooperation, competition, conflict, modify/withdraw, Title IV, Sec. 51301-03, and Sec. 403, U.S. 2015 Commercial Space Launch Competitiveness Act, 1862 Homestead Act, 1927 “Lotus” principle, terra communis omnium, res communis omnium, terra nullius, res nullius, pre-1967 UN Gen. Assembly space resolutions, UNOOSA, COPUOS, Legal Subcommittee COPUOS, pre-2015 U.S. space regulations, Luxembourg Space Legislation, UAE space policy, JAXA space policy, Moon Agreement, space resources, asteroid, asteroid resources, NASA Artemis Accords, exploration, space agencies, space economy, space industries, deep space, space science
Law | Public Affairs, Public Policy and Public Administration
Japhets, Samuel Chuks, "Res Communis Omnium v. Res Nullius in U.S. Space Mining Law & Policy: A Multilevel Theoretical Analysis of U.S. Public Policy on Space Minerals Mining Under TITLE IV, §51301- §403, U.S. 2015 Commercial Space Launch Competitiveness Act (Public Law 114-90) & Its Implications for International Space Law Under Articles I & II, 1967 Outer Space Treaty" (2023). Doctoral Dissertations and Projects. 4875.
The outer space territory and celestial bodies are unfathomably rich in strategic mineral resources worth trillions of dollars such as water ice, helium-3, platinum, iron, cobalt, and ammonia. These space resources, distinct from their space territorial and celestial bodies loci, need to be located, characterized, captured, processed, concentrated, and transported to points of use in-situ or on Earth by capable state and private space investors, stakeholders, or national agencies, for private benefits. Investors in this embryonic space mining industry need legal certainty and predictability under unambiguous legal and policy frameworks that guarantee property interests over extracted minerals. The Problem is that space mining activity is not expressly accounted for in the governing outer space law, therefore dueling legal theories abound on the legality of space mining. These notions include strict “Non-Appropriation,” permissible competitive appropriations, and conflict-oriented nationalist exclusive / imperial colonization theories. However, this research study finds that under the better, more coherent, and plausible legal interpretation of the “Non-Appropriation” principle, there is no inherent incompatibility between the terra/res communis omnium philosophical basis of Article II, 1967 OST, and the res nullius policy framework of Title IV, U.S. 2015 Space Act. This qualitative research study examined, catalogued, interpreted, and analyzed an exhaustive compendium of empirical and theoretical extant documentary data of outer space Regimes Theory literature, through the lens of a politico-philosophical and legal-historical perspectives. The study used Glaser and Strauss’ (1967) Grounded Theory methodology, in a rigorous comparative inductive analysis of the themes, concepts, and theoretical frameworks inherent in the primary and secondary data of space law and policy. The overarching theory is that Article II, 1967 OST and Title IV, U.S. 2015 Space Act can straightforwardly be harmonized. Thus the U.S. does not need to unilaterally modify the 1967 OST, withdraw from its tenets, or embark on a unilateral imperial colonization of outer space and celestial bodies in order to implement and actualize the policy goals of Title IV, Sec. 51301-03, U.S. 2015 Space Act. On this basis therefore this study adds two novelties to the study of space mining law and policy: first, this research study proposes that contemporary theoretical constructs and the theorists of space mining law and policy are best understood when structured in accordance with their underlying dominant ideological spectrum as done in this study; and second, in addition to theories of implicit presence and legal historical analysis of the travaux preparatoires of international space law, the legitimacy of Title IV is best defended principally on the 1927 “Lotus” principle due to the explicit silence of space mining policy in the body of general international law and its cognate internat