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Claiming the Cosmos: Exploring Japan's Trailblazing Property Rights Legislation on Space Resources

By Hinata Oshima

(Attorney at law admitted in Japan (Nakamura Tsunoda & Matsumoto) and Director of the Japan Space Law Association)

1. Introduction

Outer space exploration has made tremendous progress in the last decade. Japan, as one of the leading countries that has been developing outer space capabilities, has also taken up the challenge of many more space explorations over the past decade. One of the instances that stands out is the successful landing of Hayabusa2 on the asteroid Ryugu on February 22, 2019, and its collection of surface samples. On April 5, a device was launched to make the first artificial crater on an asteroid. Hayabusa2 made its second touchdown on July 11 and successfully collected sub-surface material. Hayabusa2 then left Ryugu on November 13 and returned to Earth on December 5, 2020, with the capsule holding the samples, which was recovered on December 6 in Australia. Significant strides have been achieved within Japan's private sector as well. For example, in April 2023, a lunar development company, ispace Inc., was listed on the Tokyo Stock Exchange. The company has announced plans to harvest regolith and sell it to NASA. The question of whether property rights to space resources can be granted as a precondition for doing business in space resources is a controversial topic that has long been the subject of much discussion.

In this blog, the author will introduce the current national legal regime regarding the property rights of space resources, following a basic discussion of it under the international law regime.

2. A Brief Summary of the Current Discussion on Property Rights over Space Resources under International Law

There has been much discussion on whether it is possible to acquire ownership of space resources. This is because while national appropriation by claim of sovereignty of outer space, including the moon and other celestial bodies, is prohibited under Article II of the Outer Space Treaty, it has not been clear whether the securement of ownership of space resources from celestial bodies is prohibited under the international law regime or not. Regarding property rights to lunar resources, the Moon Agreement provides one answer to this issue in Article 11.2. It says that “the moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.” However, since most of the countries that lead space development have not ratified the Moon Agreement, the reality is that the prohibition of the appropriation of lunar resources by the Moon Agreement does not, in practice, fully function as a prohibitive norm.

Recently, on this issue, Building Blocks for the Development of an International Framework on Space Resources (The Hague International Space Resources Governance Working Group 2019, “Hague Building Blocks”) and the Artemis Accord at least took the position that the obtaining of the exclusive right to space resources can be conducted without violation of international laws, including the Outer Space Treaty. For example, Article 8.1 of the Hague Building Blocks stipulates, “The international framework should ensure that resource rights over raw mineral and volatile materials extracted from space resources, as well as products derived therefrom, can lawfully be acquired through domestic legislation, bilateral agreements, and/or multilateral agreements.”

3. The Space Resources Act in Japan

3.1. Overview

In 2021, Japan enacted the world’s fourth national law allowing private ownership of space resources, the Promotion of Business Activities Related to the Exploration and Development of Space Resources [1] (“Space Resources Act"). The inaugural instance of authorization under the Space Resources Act took place in 2022, which allowed the Japanese private sector to obtain property rights to regolith on the lunar surface. It is notable that, under the Japanese domestic law regime, the extraction of space resources is not itself subject to permission. Japan has two regulatory legislations: (i) the Act on Launching of Spacecraft, etc., and Control of Spacecraft [2] (the "Space Activities Act"), and (ii) the Act on Ensuring Appropriate Handling of Satellite Remote Sensing Data [3] (“Remote-sensing Act”). In addition, the Space Activities Act stipulates two types of space activities as subject to license or permission: (i-a) launch and (i-b) controlling spacecraft. It is notable that the term spacecraft means “an artificial object which is used by putting it into Earth's orbit or beyond, or placed on a celestial body other than the Earth.” As per this definition, rovers or other types of payloads used for exploration and exploitation of space resources fall under “spacecraft.” The Space Resources Act is enacted as a special law governing the specific rules regarding permissions to control the spacecraft that will be used for space resource exploitation. Therefore, anyone who wants to obtain a license to secure the property rights of space resources obtained by spacecraft needs to get permission to control the spacecraft and meet all requirements stipulated in the Space Resources Act.

3.2. Requirements

Under the Space Resources Act, anyone who intends to use spacecraft for the purpose of exploring and developing space resources must also submit a business activity plan to the Japanese government when applying for a license under the Space Activity Act, which must include the purpose, term, place, methods, and content of the exploration activity, as well as a financial plan and system for the activity. Article 5 of the Space Resources Act is the provision that grants property rights to space resources. It stipulates that “a person who conducts business activities related to the exploration and development of space resources shall acquire the ownership of space resources that have been mined, etc. in accordance with the business activity plan pertaining to the license, etc. for the exploration and development of space resources, by possessing said space resources with the intention to own.”

In this way, under Japanese domestic law, the conditions for acquiring ownership of space resources are:

(i) obtain permission to control spacecraft under the Space Activities Act;

(ii) on the occasion of (i) above, submit a business plan in accordance with the Space Resources Act; and

(iii) take possession with the intention to own in accordance with Article 5 of the Space Resources Act.

3.3. Does the Space Resources Act apply to space activity in outer space?

The Space Resources Act is expected to play a role in promoting the space resources business in the future as the fourth law in the world to grant private individuals the right to own space resources. However, there are a wide range of unresolved issues in the context of international legal disciplines. For example, Article II of the Outer Space Treaty stipulates, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Based on Article II, national sovereignty does not reach outer space. It means that domestic law cannot apply to space activity conducted in areas beyond the sovereignty (outer space). However, since we do not always envision bringing acquired space resources back to Earth, sorting out the ownership of space resources solely through national laws may not be sufficient.

4. Conclusion

Coordination of interests between nations and international rulemaking is essential to ensuring that space exploration, and in particular the exclusive rights to space resources, do not trigger an irrational development race. To move forward, the development of national legislation alone is not sufficient, and a major challenge for the future will be to coordinate interests with other countries. This is evidenced by Article 8.2 of the Hague Building Blocks, which stipulates that “the international framework should enable the mutual recognition between States of such resource rights.” The spectacular legal issue of property rights over space resources is still in the process of being resolved.

[1] (Act No. 83 of 2021).

[2] Act No. 76 of 2016.

[3] Act No. 77 of November 16, 2016.

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