(2025) 6 TWAIL Review 23-50
ISSN 2563-6693
Published under a Creative Commons licence. 

The legality of space mining has been the subject of long debate. This article provides a comprehensive legal analysis of Article II of the Outer Space Treaty (OST) at the time of its creation. It is crucial to distinguish between arguments justifying space mining based on the original interpretation of the OST and those justifying it through the evolution of State practice. The focus here is on the former, and not on subsequent State practice. The conclusion here is that the treaty as originally drafted was not intended to, nor does it in its plain wording, support space mining. Nor is the mechanical application of legal analogies made at the time (and subsequently) — drawn from the freedom of fishing, seabed mining, and res communis — convincing. Rather, arguments for the legality of space mining rely upon the evolution of State practice, by which States have gradually bent the OST’s meaning to accommodate new interests. The purpose of this article is to establish the baseline for interpreting Article II of the OST, paving the way for future works to demonstrate how States have strategically altered its interpretation via practice to permit space mining. It re-surfaces the original drafting intentions of newly decolonized Third World States, highlighting how far current debates have moved from the agenda for space law they proposed.