Space Mining and National Appropriation

Last year the US passed a bill that purports to give exclusive rights to US companies to mine asteroids and reap the economic profits of their activities. While I am in full support of encouraging the development of this new industry, the law has divided the space community. There are those who believe it is fully in accordance with the Outer Space Treaty, and those who, like me, believe it is a breach of one of the core tenets of this treaty, that space may not be subject to national appropriation by any means. Earlier this year Luxembourg passed a similar law, stating that it wishes to become the commercial space centre of Europe – only it’s law went a step further, encouraging companies of any nationality to go through Luxembourg to get their property protection.

When the US bill was passed last year I wrote an op-ed that was published in the Ottawa Citizen. It received applause as well as scathing criticism, depending on which camp the respondents belonged to.

The original op-ed is reproduced here:

It might sound like science fiction, but there are companies just across the border in the United States that want to mine asteroids for resources such as gold, silver, iridium and even oxygen in the near future. On Nov. 25 President Barack Obama signed a law in order to enable them to do so, but there is one small problem. This legislation is in breach of international law, and ironically U.S. Congress seems to be fully aware of this.

space mining

The Commercial Space Launch Competitiveness Act is the result of some effective lobbying on the part of companies such as Planetary Resources and Deep Space Industries. They understand that they need a regulatory framework within which to operate their cutting edge technologies and start a new resources industry. These companies are investing at high stakes, with estimated costs of $100 billion U.S., and anticipated turnovers of $5 trillion.

The Act passed on Nov. 25 does some important things for the space business world, such as putting in place government and industry collaboration on safety regulations for space tourism, and extending U.S. involvement in the International Space Station through to at least 2024.

But there is one particularly controversial section, which states that any U.S. citizen, which includes U.S. registered companies, shall be entitled to “possess, own, transport, use, and sell (any) asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”

The problem is that the international obligations of the United States include the 1967 Outer Space Treaty, one of the core principles of which is that space, including the Moon and celestial bodies such as planets and asteroids, cannot be owned by anyone; not by states, not by companies, not by individuals. More than 100 other countries including Canada have signed the treaty, Article II of which determines that space shall not be “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” U.S. Congress is not ignorant of this, and the very next paragraph of the new Act says that “the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

If asteroids cannot be appropriated by any state, they can also never be owned by a company, and that includes parts of an asteroid that might be extracted. Any notion of property law which would allow a person to possess, use or sell an object, depend upon the existence of a sovereign jurisdiction. The U.S. cannot give away what it does not own.

There are many who argue this new legislation is unproblematic, since extraction of resources from an asteroid does not amount to claiming ownership of that asteroid, and liken this to fishing or extracting oil in the high seas. However, claiming rights to extract or sell part of an asteroid still requires the legal ability to do so. The extraction of resources in the high seas is regulated by the United Nations Convention on the Law of the Sea, and by the Deep Seabed Authority. If we want to support this new entrepreneurship in space, states need to agree on a new international law regime, rather than attempting to circumvent the existing one.

It was clear to everyone that when a U.S. flag was planted on the surface of the Moon in 1969, it was nothing more than symbolic. Perhaps this is another a symbolic move: perhaps U.S. Congress hopes other states will respond by finally coming to the table and negotiating a much needed treaty that would allow this new industry to flourish, while also protecting space the way we protect the high seas.

As of yet there are no Canadian companies entering this commercial space race, but they may well do in the future, and Canada has an interest in the right kind of international legal regime. Without it, we risk a commercial “race to the bottom”, with no environmental protection and no access for less developed nations; this threatens space and its resources the same way our oceans are threatened.