You know if an article that we read mentions eminent domain, we get excited. When we read about eminent domain and outer space, we knew it was something that we had to share.
On April 2, 2020, the White House issued an executive order on “encouraging international support for the recovery and use of space resources.” Karl Grossman, a professor of journalism at the State University of New York, College at Old Westbury, thinks that is a push by the US to militarize and commercialize space.
The executive order states: “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law. Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons. Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law.”
According to Grossman, the term “international support” heavily implies that the US has a unilateral right to engage in the recovery and use of resources in space. “So between denial and greed, here the US is moving ahead quite unilaterally to exploit - I think there’s gold up there. It’s very important. We’ve discussed this before - how US military documents throughout the years have actually talked about the US military moving up into space … We [the US] somehow think we have eminent domain,” Grossman said.
A report by Space Daily, an online outer space news site, notes that space is a “challenging place for commercial activity,” especially since an increased body of knowledge points to there being valuable minerals such as gold, silver and platinum on celestial bodies such as the moon.
In 1967 the United States signed a non-binding treaty, aptly named the “Outer Space Treaty of 1967” which says that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.” And that “outer space shall be free for exploration and use by all States” and “outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
You may not know this (and that’s why you should read our blog) but there is a Moon Agreement. This agreement says, “the moon and its natural resources are the common heritage of mankind,” and an “international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.”. Adopted in 1979 by the United Nations General Assembly, it has 18 signatories, none of which are major space powers such as Russia, China and the US. The potential issue that experts see is that it may open up the moon’s resources to the United States under the recent executive order.
This all leads us to one last thought. Will there be a requirement for eminent domain lawyers to take an outer space bar exam?