International Institute of Space Law OK With U.S. Asteroid Mining Law

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.