The Board of Directors of the International Institute of Space Law (IISL) has issued a position paper concluding that a new U.S. law that grants property rights to resources mined from asteroids or other space objects by U.S. companies does not violate the 1967 Outer Space Treaty.  The United States is a signatory to that treaty and whether or not the law complies with the treaty is matter of some debate in space law circles.

The law’s provision applies to extraction and use of resources from space objects generally, but is commonly referred to as asteroid mining because two U.S. companies are proposing to do that.  It is part of the Commercial Space Launch Competitiveness Act that was signed into law by President Obama on November 25.  While the law affects a variety of commercial space activities, the space resource mining provision is receiving the most attention.

The 1967 Outer Space Treaty (OST) was negotiated long before the technical feasibility of mining asteroids existed.  Some question today whether it is technically or economically feasible, but two U.S. companies, Planetary Resources Inc. and Deep Space Industries, are promoting the idea.   Planetary Resources is widely credited with getting the legal issues on the table and convincing Congress to include the provision in the law and the President to sign it.  The argument is that while it may be many years before anyone actually mines resources from asteroids, investors are needed now and they want clarity before putting their money into such ventures.

Two provisions of the OST underlie the debate about the U.S. law’s international standing.  Article II states that no nation may claim sovereignty over the Moon or other celestial bodies.  Article VI requires countries that agree to abide by the Treaty (“States Parties”) to authorize and continually supervise the activities of their non-governmental entities, such as companies.

Section 402 of the law states that: “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.”  Section 403 states that:  “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.”

The IISL position paper stops short of endorsing the U.S. law, but agrees that it is “a possible interpretation” of the OST, but “[w]hether and to what extent this interpretation is shared by other States remains to be seen.”   It points out that the law explicitly does not make any claims of sovereignty over celestial bodies and further states that the resources must be obtained in accordance with U.S. international obligations, which include adherence to the OST.  “The Act thus pays respect to the international legal obligations of the United States and applicable law on which the property rights to space resources will continue to depend.”

The position paper ends on a cautionary note: “It is an open question whether this legal situation is satisfactory.”   However, it considers the U.S. law to be a “starting point for the development of international rules to be evaluated by means of an international dialogue…”

Rep. Brian Babin, chairman of the Space Subcommittee of the House Science, Space and Technology Committee, recently expressed support for international discussions while ruling out creation of any international body to regulate space resource mining.   Two congressional staff, one from the House and one from the Senate, who were deeply involved in crafting the bill, confirmed that both chambers are open to an international dialogue.

Such a dialogue can take place on a bilateral basis or through international fora such as the United Nations Committee on Peaceful Uses of Outer Space (COPUOS).   COPUOUS has a Scientific and Technical subcommittee that meets in February and a Legal Subcommittee that meets in March/April.  The full committee meets in June.  All the meetings are held at the U.N. Office of Outer Space Affairs (OOSA) in Vienna, Austria.  

Washington sources say the United States is already talking with some of its traditional space program partners about these topics and will begin informing COPUOS about the new law at its meetings next year.

The law also addresses the questions posed by Article VI.  Today, no U.S. agency has responsibility for authorizing or continually supervising the activities of all U.S. non-governmental entities involved in space.  The FAA’s Office of Commercial Space Transportation regulates space launches and reentries, but has no authority over activities such as space resource mining, for example.   The law requires the President to submit a report to Congress within 180 days of enactment recommending the allocation of responsibilities among Federal agencies to meet the Article VI requirement.

The FAA’s Office of Commercial Space Transportation (AST) will get $17.8 million for FY2016 in the final version of the appropriations bill congressional negotiators agreed to overnight.  It is more than FY2015, but less than what the President requested.  At the same time, AST’s Commercial Space Transportation Advisory Committee (COMSTAC) is recommending that AST expand the scope of its activities to engage with the European Space Agency (ESA) on its Moon Village concept.

The FAA is funded as part of the Transportation-Housing and Urban Development (T-HUD) appropriations bill.  All 12 FY2016 appropriations bills have been consolidated into a single “omnibus” appropriations bill, H.R. 2029, for consideration by Congress.   T-HUD is Division L of the bill, which is posted on the website of the House Rules Committee along with accompanying explanatory statements.

The majority of AST’s funding comes from the FAA’s Operations budget.  The President requested $18.144 million for FY2016, a $1.5 million increase over its FY2015 budget of $16.605 million.  In its version of the T-HUD bill, the House provided only a $250,000 increase over FY2015 and that was added during debate on the House floor, not by the House Appropriations Committee.  The Senate Appropriations Committee recommended $17.425 million in its version of the bill.

The final bill is a bit better than that.  AST will get $17.8 million, $1.2 million more than last year, but still short of the President’s request.

The FAA also requested $3 million for “Commercial Space Transportation Safety” in the Research, Engineering & Development (RE&D) part its budget and $2 million for “commercial space integration” into the National Air Space as part of its $13.7 million request for Air Traffic Management (ATM) under the Facilities & Equipment (F&E) budget. The final agreement provides $2 million instead of $3 million in RE&D (with a notation that FY2015 funding was “buried in NextGen Air Ground Integration per FY14 congressional language”).  The full $13.7 million for ATM in F&E is provided in the final bill, but it does not break that total down to the level of detail needed to confirm the $2 million for commercial space integration is fully funded.

Eric Stallmer, President of the Commercial Spaceflight Federation, praised the increase for AST, but added that “their budget will continue to constrain their ability to fulfill their responsibilities to industry as it is projected to grow.”

AST facilitates and regulates the commercial space launch industry and its activities are growing with increased demand for commercial orbital and suborbital launch and reentry licenses.  The recently enacted Commercial Space Transportation Competitiveness Act directs AST to take certain actions (such as adding a new category of “government astronaut” to the type of passengers on a commercial human spaceflight and continuing to provide indemnification for certain amounts of third party liability in the event of a commercial launch accident that harms the uninvolved public) and prohibits others (especially creating new regulations governing commercial human spaceflight until 2023). 

Some envision AST’s role expanding into other areas as well, including commercial activities beyond Earth orbit.  AST Associate Administrator George Nield recently endorsed a concept put forward by ESA Director General Jan Woerner to build a “Moon Village” on the far side of the Moon, but with commercial as well as governmental partners. 

During a teleconference meeting last Thursday (December 10),  COMSTAC heard directly from Woerner about his Moon Village concept and discussed a draft recommendation that AST “engage directly” with ESA to foster the participation of U.S. commercial entities in ESA’s planning activities.   COMSTAC later unanimously approved the recommendation though an email vote according to COMSTAC chairman Mike Gold of Bigelow Aerospace.  The text is as follows:

During the discussion on Thursday, a COMSTAC member asked whether the committee was “overreaching” AST’s jurisdiction by not separating out commercial launch activities from other activities that would be involved in establishing a lunar village. Gold said that the committee has not hesitated to weigh in on issues, including export control reform, that affect, but may not be directly related to, the commercial launch business.  He added that COMSTAC will review its charter and bylaws at its next meeting to ensure it is written broadly enough to encompass such topics.  COMSTAC member Mark Sundahl added that COMSTAC’s jurisdiction is “growing all the time” and as long as an activity is at least “tangentially” related to launch, it is within scope.

Indeed, when Nield endorsed the Moon Village concept, he made it clear his interest is in commercial activities well beyond launch, calling the opportunities “limitless.”  He noted, as have many others, that no U.S. government agency has yet been
assigned the task of authorizing or supervising such commercial
activities in space.   Article VI of the 1967 Outer Space Treaty requires that
“activities of non-governmental entities in outer space, including the
moon and other celestial bodies, shall require authorization and
continuing supervision” by the relevant State party to the treaty.  
Some in the commercial space sector argue that AST’s responsibilities
should be expanded to include that role.  Others think the Department of Commerce’s Office of Space
Commerce would be a better fit.  The new commercial space law directs the White House Office of Science and Technology Policy (OSTP) to study and make recommendations on “an authorization and supervision approach that would prioritize safety, utilize existing authorities, minimize burdens to the industry, promote the U.S. commercial space sector, and meet the United States obligations under international treaties.”

A key Member of Congress and two congressional staff expounded on congressional intent in the recently enacted commercial space law at a space law and policy conference in Washington, D.C. on Wednesday.  The law’s provisions regarding property rights to materials mined from asteroids were center stage and Rep. Brian Babin (R-TX) left no doubt that he does not want any international organization regulating those activities, but that does not rule out international discussions.

Babin provided the opening keynote at the 10th Eilene M. Galloway Symposium on Critical Issues in Space Law on December 9. The asteroid mining provisions are controversial in the space law community because the 1967 Outer Space Treaty prohibits countries that adhere to the Treaty (“States parties”) from claiming sovereignty over the Moon or other celestial bodies.  It also requires States parties to authorize and continually supervise the activities of their non-governmental entities, such as companies, making the governments internationally responsible for what they do in space. Supporters of the law point out that no sovereignty claims are made to celestial bodies, only property rights to materials mined from them, and the law fulfills U.S. obligations to authorize and supervise what U.S. companies are doing in space.

Babin stressed that the new U.S. law does not support the idea of any international body regulating space resource mining.  Instead, he expects the legal regime to “evolve naturally” over time with the advent of other nations’ domestic laws and development of customary practice.   The U.S. State Department, he said, could engage diplomatically with other countries as they develop their own laws that support “mutual recognition of space resource rights,” but he emphatically rejected allowing any “international body to govern space resource mining.”  Other countries might want to do that, he argued, in order to “impede” U.S. companies by establishing a “burdensome yoke of an international body around the neck of U.S. innovation.  While there is certainly a place for the U.S. to engage internationally, those efforts should focus on mutually beneficial arrangements. “

During a panel discussion later in the day, Tom Hammond, Republican staff director of the Space Subcommittee of the House Science, Space and Technology Committee, which Babin chairs, reiterated that Babin’s objection is to an international body regulating such activities, not to an international agreement.  He stressed that the law only sets forth U.S. policy.

Hammond’s Senate Democratic counterpart, Nick Cummings, agreed, saying that they knew discussions were underway in the academic and international communities and “we did not want to set those discussions back. …We want those discussions to happen.”   Cummings works for Senator Bill Nelson (D-FL), the ranking member of the Senate Commerce, Science and Transportation Committee, who was instrumental in getting the bill through the Senate. 

International discussions involving the five U.N. space treaties usually take place through the U.N. Committee on Peaceful Uses of Outer Space (COPUOS), which are led for the United States by the State Department.  The State Department did not reply by press time to a query as to whether it plans to raise property rights in space at the 2016 meetings of COPUOS and its two subcommittees — the Scientific and Technical Subcommittee, which meets in February, and the Legal Subcommittee, which meets in April.  The full COPUOS meets in June.