International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

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.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

http://opiniojuris.org/2015/11/25/international-law-does-not-prohibit-commercial-asteroid-mining-nor-should-it/

15 Responses

  1. shall be carried out for the benefit of all countries, and in the interests of all countries — so how can complete private control and ownership by a very few fulfill those requirements?

  2. Thanks for an interesting post . Plenty of time indeed, yet, why to bother for such legislation, and leaving it seems (from the post) clear lacunas in it.
    For even if no sovereignty is claimed , upon such celestial bodies, yet, an American entrepreneur may claim full possession and ownership of material and mines on such body.

    And who can prevent , a French entrepreneur from working on the same body, in another end of it ?? while the American one , has invested money for analyzing and searching and preparing , and the French , would ” dance ” and ” feast ” on the ” heavy lifting ” of the American .

    So, private dispute, shall become very quickly sovereign one.

    One can reach the full text of the bill , here :

    http://www.cruz.senate.gov/files/documents/Bills/20151112_Space_HR2262ANS.pdf

    Thanks

  3. It seems that your argument regarding commercial exploitation being subjected to the “treaty obligations” of the US relies heavily on section 403 (§ 51303. Asteroid resource and space resource rights), where Congress affirms its understanding that the US is not asserting sovereignty, sovereign rights, exclusive rights, or jurisdiction over, or ownership of, celestial bodies. Yet this understanding is disingenuous, since the bill when converted into act does precisely assert at least two of these.

    First, by authorizing US citizens to engage in asteroid resource recovery and that they will be entitled to possess and own such resource, the US is asserting jurisdiction over celestial bodies at least in the sense that apparently it can determine ownership of their resources when, at present, nobody has ownership. No doubt, the US (courts) will assert jurisdiction over disputes regarding such resources.

    Second, if US citizens can beat others to the punch, reach an asteroid and control its resources, this to all intents and purposes amounts to private ownership of the asteroid. As the bill reserves this to US citizens, private control will equate public control and could also be seen as an assertion of ownership of that celestial body.

    In other words, the regulation does not simply say that US citizens are allowed to possess, own, transport, use, and sell asteroid resources “without violating US law”, but in effect assigns the possession and ownership of such resources to US citizens just as long as they reach them first. Considering that there are only a few States and organizations in the world that are able to send ships into space in the first place (US, Russia, China, Japan, India, ESA, possibly Iran and Malaysia), the US is setting up a selective scramble for space resources similar to the European scramble for African resources in the late 19th and beginning 20th century. How this is reconcilable with the stipulation that the exploration and use of space and celestial bodies shall be carried for the benefit of all countries is difficult to see.

  4. Dear author,
    Imagine that in addition to the USA, the Netherlands, Suriname and Indonesia pass similar legislations. Imagine further that one citizen of each of those countries claim the same piece of the “Space” as theirs. I wonder how one will be determine to whom it belongs. In my view, to answer that question one must decide which of these countries’ claim to “prescriptive” jurisdiction in respect to the Space prevails. That question cannot be answered without first accepting that country’s may exercise sovereignty in respect of the Space by virtue of which they are entitled prescribe how property can be obtained. I therefore fail to see how it can be asserted that a legislation that pretends to create property rights in the Space does not imply a claim of sovereignty.

  5. I think the author is right. After all, is Mexico were to enact a law stating:

    A MEXICAN citizen engaged in commercial recovery of GOLD ON THE TERRITORY OF THE UNITED STATES OF AMERICA under this chapter shall be entitled to any GOLD ON THE TERRITORY OF THE UNITED STATES OF AMERICA obtained, including to possess, own, transport, use, and sell the GOLD ON THE TERRITORY OF THE UNITED STATES OF AMERICA obtained in accordance with applicable law, including the international obligations of MEXICO”,

    I am sure that the US would not object, because after all this is NOT assertion of Mexican jurisdiction over US property!

    This is crazy…

  6. Guy: there is a treaty that has to be interpreted and applied. The U.S. legislation has no direct legal effect in any other country or out in outer space except with respect to regulation of U.S. nationals under U.S. nationality jurisdiction. It cannot confer lawful title to property outside of the U.S. that the U.S. does not own. Without further treaty changes, ownership will be contested in foreign courts, perhaps even before an ad hoc international tribunal.

  7. (it was a joke, of course the US would object to such a law, if Mexico were to adopt it!)

  8. Completely cannot understand this logic. I wonder whether the U.S. has the power to issue the Act and “authorize” commercial exploration of outer space resource, in the context that it cannot claim sovereignty to any piece of outer space in the first place…

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