In a robust move to encourage investment and support commercial activities for the mining of space resources by U.S. citizens and companies, President Obama signed the Space Resource Exploration and Utilization Act of 2015 in November 2015. The act is part of the more general Commercial Space Launch Competitiveness Act.
The new act directs the President, acting through the appropriate federal agencies, to:
• "facilitate the commercial exploration and utilization of space resources to meet national needs;
• discourage government barriers to the development of economically viable, safe, and stable industries for the exploration and utilization of space resources in manners consistent with the existing international obligations of the United States; and
• promote the right of U.S. commercial entities to explore outer space and utilize space resources, in accordance with such obligations, free from harmful interference, and to transfer or sell such resources."
This is a decisive position for the United States to take, which expressly facilitates the commercial exploration and utilization of space resources and entitles U.S. citizens and companies engaged in commercial mining of space resources to own, possess, transport, use and sell the space resources that they obtain. As the act concretely states, "Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them."
I would applaud the U.S. government's support of the country’s private commercial investment and activities. The act offers some sought-after certainty to companies such as Planetary Resources and Moon Express, which are investing in the commercial exploitation and utilization of space resources.
However, several believe that the act may breach international law. The act offers rights according to the international obligations of the United States as a signatory to the Outer Space Treaty 1967. As such, the U.S. is obliged to authorize and supervise national activities in outer space and ensure that such activities comply with the treaty. Of particular relevance are two principles of the treaty:
• The principle of non-appropriation. Article II explains that, "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." In other words, a private entity cannot "own" the Moon or any territory on the Moon, in outer space or on celestial bodies.
• The principle of freedom of exploration and use. Article I specifies that "Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law." What is not clear is whether this principle allows the commercial recovery, ownership, possession, use and sale of non-renewable natural resources.
The Position Paper on Space Resource Mining of the International Institute of Space Law (IISL), which its 21-member board adopted unanimously on Dec. 20, 2015, states that: "in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty, one can conclude that the use of space resources is permitted. Viewed from this perspective, the new United States act is a possible interpretation of the Outer Space Treaty."
I share this view, and it is important to stress that the United States is not claiming sovereignty, nor does it claim national appropriation, over the Moon or other celestial bodies. The intention and purpose of the act is to entitle U.S. citizens and companies to own, use and sell space resources if such resources have been obtained in accordance with applicable international law.
The United States accepts that it has the obligation to authorize and supervise national activities, including mining and the recovery of space resources, in outer space under the treaty. As discussed by Tanja Masson-Zwaan, president of the IISL, "This does not mean that a gold rush for space resources lies ahead: the legislation provided that the President shall submit a report to Congress within 180 days specifying ‘the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the federal government.’"
It remains to be seen whether this U.S. interpretation of international law is followed by other countries. There will be some provoking discussions at this year's Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space in March. At present there is no international regime, which explicitly governs space resource mining, recovery and ownership. The U.S. act at last offers, at least U.S. companies, some legal certainty and is likely to be the catalyst for discussions, particularly in relation to the two principles above, at international level. This may result in the development of an international agreement, UN resolution or regulation governing space resource mining, exploitation and ownership. International coordination is needed, and perhaps The Hague Space Resources Governance Working Group hosted by the International Institute of Air & Space Law in Leiden could be the first step in that direction.
What I believe is important is that the U.S. has considered and brought into force a law governing these issues in order to offer some legal and regulatory certainty for private commercial endeavors while also authorizing and supervising such activities before they occur rather than react to mining and exploitation of resources, which have occurred in the past and may not have been carried out in conformity with international law; thus setting a challenging precedent. These innovative commercial activities will occur; it is far better that they occur with legal certainty and in conformity with international principles which encourage the sustainable development of outer space and support life on Earth.
Joanne Wheeler is a partner at international law firm Bird & Bird (commercial, corporate, finance, litigation, IP and regulatory specialists for the space industry).