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DSI Harvestor
An illustration of an asteroid mining spacecraft proposed by Deep Space Industries. A new law would give companies like DSI ownership of resources they extract from asteroids, but the law is not without some controversy. (credit: Brian Versteeg/Deep Space Industries)

Staking a claim to space resources

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The US Commercial Space Launch Competitiveness Act, the commercial space bill passed by Congress last month and signed into law by President Obama on the day before Thanksgiving, is about 7,250 words long: not short, but far smaller than, say, the typical appropriations bill or defense authorization bill. Of that, less than 500 words is allocated to the last of four “titles” of the bill, a portion of the bill called “Space Resource Exploration and Utilization.”

“It’s interesting that, for all the work we put into the bill, what really resonated with a lot of people was the resources section,” said Stallmer.

But it’s that portion of the bill that has gotten all of the attention in the last several weeks. While many commercial space companies might appreciate other provisions of the bill, like extending the “learning period” limiting safety regulations for commercial spaceflight participants, people can’t seem to stop talking about the section that grants US citizens the rights to space resources they physically extract from asteroids, the Moon, or other solar system bodies beyond Earth.

Specifically, the new law states: “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.”

That language is both broader and less specific than the version of the bill that the House passed in May. The bill, originally focused only on asteroid resources, now includes “space resources” as well, as the section above states. (That might explain the language of “asteroid resources and space resources,” since asteroid resources is an obvious subset of space resources.) The bill defines “space resource” as “an abiotic resource in situ in outer space” that specifically includes water and minerals.

However, the final version of the bill doesn’t include the earlier bill’s “legal framework” section. That would have specifically allowed a US entity involved in asteroid resource extraction to seek relief in the federal courts if another US entity was engaged in harmful interference.

The bill’s language seems, in its final version, fairly basic: if you obtain a space resource, it’s yours to do with as you please, including to sell to someone else. However, to many, that provision appears dangerously close to sovereign claims of territory on celestial bodies that are prohibited by the Outer Space Treaty.

“The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbriddled [sic] commercial exploitation of outer-space resources,” wrote Gbenga Oduntan, a senior lecturer in international commercial law at the University of Kent in the UK, in a column last month published by The Conversation.

Oduntan argued that allowing people or companies to claim space resources violates the Outer Space Treaty, which states that the “exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development.” He also claimed that the law violates the Moon Treaty, an agreement that has not been ratified by most spacefaring nations, including the US, but which he argues is “binding as customary international law.”

“If there’s ambiguity about whether companies that make these investments in the extraction of resources in space have the rights to be able to do that,” Kalil said, “that’s going to have a chilling effect on private investment.”

Other legal experts, primarily outside of the US, have criticized the bill on similar grounds, even as companies and organizations within the US have praised Congress for including that language in the final bill. The result has been a torrent of attention focused on a small, and primarily long-term (after all, it will be years before any company is in position to obtain space resources), provision of the overall bill.

“It’s interesting that, for all the work we put into the bill, what really resonated with a lot of people was the resources section,” said Eric Stallmer, president of the Commercial Spaceflight Federation (CSF), in an online panel discussion about the bill held by his organization earlier this month.

Some of the criticism of the bill’s space resource language even came from within the US government. At a meeting of the NASA Advisory Council at the Johnson Space Center in Houston at the beginning of the month, NASA administrator Charles Bolden suggested he has questions about that provision of the bill.

“I’m not sure that the US Congress can pass a law that authorizes American citizens to go do something” like claim rights to space resources, he said when a council member asked him about the bill. He went on to add that he was asking for legal input about that language. “It is encouraging the entrepreneurs and others who say they want to go mine asteroids and mine the Moon and the like, so I’m encouraged by their encouragement,” he said.

However, a White House official speaking at the CSF panel discussion endorsed the bill. “If there’s ambiguity about whether companies that make these investments in the extraction of resources in space have the rights to be able to do that,” he said, “that’s going to have a chilling effect on private investment.”

That concern about ambiguity—could a company, in fact, own resources it extracted from asteroids or other bodies, at least in the eyes of US government—was a key driver for the bill. Some companies, and their investors, were concerned that without an explicit endorsement of those rights, future investment could be limited.

“This gives our investors a sense of stability and assurance that their investment can be protected,” said Peter Marquez, vice president for global engagement at Planetary Resources, at the CSF panel.

At the same time, though, members of Congress and their staff have argued that the bill’s language not only conforms to international treaties, but instead simply makes clear what was widely understood before its passage.

“Unfortunately, there have been a number of misconceptions about the intent and legality of Title IV,” said Rep. Brian Babin (R-TX), chairman of the House Science Committee’s space subcommittee, in a speech last week at the 10th Annual Eilene M. Galloway Symposium on Critical Issues of Space Law in Washington.

Babin noted that Article 6 of the Outer Space Treaty allows private individuals and companies to use and explore space, “including the right to remove, the right to take possession, and to use in situ natural resources from celestial bodies,” he said. “The US government has long taken this position while recognizing and aware that this view is not shared by all states or commentators.”

“This is the beginning, not the ending, of the discussion that will take place internationally,” Gold said.

He added that the final version of the law was drafted so that rights are conferred only to resources that are “obtained” from celestial bodies, which he defined as being physically extracted. “It was never our intent that obtainment would allow a company to remotely sense a resource and asset a right of possession,” he said. “Only through physical recovery does this right manifest.”

In a panel later in the symposium, staff members from the House and Senate, representing both parties, said they believed the law’s language merely made explicit what was widely understood. “I don’t think it’s anything new, and I don’t think anyone should be caught off guard by the US’s policy,” said Tom Hammond, staff director of the House’s space subcommittee.

“If a company had gone and done this, and brought these materials back, does anybody think the United States government would have seized them when they landed?” asked Nicholas Cummings, a member of the Senate Commerce Committee staff working for its ranking member, Sen. Bill Nelson (D-FL). “I’m not sure that we established a new right.”

The government may, by and large, not believe that they have established a new right, but the perceptions in the international community will need to be addressed. Mike Gold, director of DC operations and business growth at Bigelow Aerospace, said on the CSF panel that he expects the topic to come up in February at the next meeting of the United Nations Committee on the Peaceful Uses of Outer Space. “There will be an outcry from many nations about the US flaunting the Outer Space Treaty,” he predicted.

“The ball is now in the international court,” said Frans von der Dunk, professor of space law at the University of Nebraska, during a panel session organized by the university in Washington in late October, around the time the final version of the bill had been released. “I see this as kind of an invitation to the international community. If we want to develop an international regime, this is the moment to stand up and try to discuss that.”

Babin, though, warned in his speech about creating any kind of “international body” to regulate space mining. “Doing so is unnecessary and would be counterproductive,” he said, arguing that such a regime could hinder the development of American companies. “The United States continues to lead the world in space exploration, however, other nations would like to impede this progress for their own benefit by placing a burdensome yoke of an international body around the neck of US innovation.”

One thing is certain: Title IV of the US Commercial Space Launch Competitiveness Act might be the first legal word on space mining, but it is unlikely to be the last on a national or international level. “This is the beginning, not the ending, of the discussion that will take place internationally,” Gold said.