US Law Allowing Asteroid Mining Continues to Stir Controversy

Language in a new commercial space law that grants companies rights to resources they extract from asteroids and other solar system bodies provides them with some certainty, but they acknowledge that the law is likely not the last word on the issue.

President Barack Obama signed into law Nov. 25 the U.S. Commercial Space Launch Competitiveness Act, the final version of a commercial space bill approved by the House and Senate earlier in the month. Most of the bill is devoted to issues regarding commercial space transportation, including extensions of third-party launch indemnification and restrictions on regulations regarding safety of commercial spaceflight participants.

One section of the new law, though, that has received a large amount of attention is the part about space resources. That section states that U.S. citizens shall have rights to any resources they extract from asteroids, moons or other bodies, “including to possess, own, transport, use, and sell” those resources.

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With that interest, though, has also come controversy. Some space law experts, particularly outside of the United States, have raised questions about whether the language in the new law might conflict with international accords like the Outer Space Treaty, which prohibits countries from claiming sovereignty over territory beyond Earth.

Even some people within the U.S. government have raised questions about the law. “I’m not sure that the U.S. Congress can pass a law that authorizes American citizens to go do something” like claim rights to space resources, NASA Administrator Charles Bolden said at a Dec. 1 meeting of the NASA Advisory Council at the Johnson Space Center, when asked by a council member about the new law.

Bolden said he’s asked lawyers for their opinions about the new law and how it might affect NASA’s exploration plans, such as enhancing commercial use of space. “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.

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The question also remains whether or not its even practical.

Does US Patent Law Dominate Outer Space?

Space technology is advancing rapidly and human activity in outer space is more common than ever before. Often space technology is protected by a patent.

A patent is a territorial right, meaning that it applies only to the territory (including the air space of that territory) in which the patent is granted. For example, a U.S. patent provides the patent owner with a legal means to prevent others from exploiting the invention covered by that patent without his or her permission in the United States only. If the invention is not covered by a patent granted in any other jurisdiction, others are free to make, use or sell the invention in those other jurisdictions.

But, given that a patent is a territorial right, can a patent afford protection of an invention whose commercial exploitation requires that it be made, used or sold in outer space?

This is becoming an increasingly important question as we see human space activity on the rise with ever greater presence and research aboard space stations, more and more satellites and also the opportunity to experience space becoming more attainable for everyone through space tourism with companies such as Virgin Galactic. A growing number of players in the field of space technology means that the uncertainty surrounding unauthorized use of patented inventions in outer space soon needs to be addressed.

Perhaps the question to ask is, whose territory is space? Should infringement be determined according to the jurisdiction above which the space object is at the time of an alleged infringement? It appears not.

The Outer Space Treaty of 1967 (Article 8) states: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object… while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” Therefore, it could be argued that the patent law of the state in which the space object was registered and from which it was launched applies to an invention that is subsequently made, used or sold on that space object.

Interestingly, U.S. patent law has an explicit provision along these lines for inventions in outer space under Title 35, Section 105 of the U.S. Code: “Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.”

This suggests that unauthorized manufacture, use or sale of a patented invention on a space object under the jurisdiction of the United States will be treated as if it were an infringement under U.S. patent law. After all, when a space object is launched into Earth orbit or beyond, the launching state must register the space object and so the jurisdiction of the space object would be retrievable. There even exists a provision for cases where there are two or more launching states of a space object under the U.N. Convention on Registration of Objects Launched into Outer Space, which states: “Where there are two or more launching States in respect of any such object, they shall jointly determine which one of them shall register the object.”

However, the United States seems to be alone in providing an explicit provision for inventions in outer space. Most other jurisdictions do not currently have any such provisions, and there still remains some uncertainty as to whether an inventor can be protected against the unauthorized use of a patented invention in outer space.

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International Outrage at the American Legalization of Asteroid Mining

The Commercial Space Launch Act, which includes provisions allowing American companies the right to keep resources that they mine in space, was recently signed into law by President Barack Obama. While the act has been hailed as groundbreaking in the United States, the space mining title has gotten an angry reaction overseas. In a Friday article in Science Alert, Gbenga Oduntan, Senior Lecturer in International Commercial Law, University of Kent, condemned the space mining provisions as environmentally risky and a violation of international law. Ram Jakhu, a professor at Canada’s McGill University's Institute of air and space law, adds that space mining is a violation of the Outer Space Treaty and should not be allowed.

Oduntan’s environmental argument is expressed thus:

“So what’s at stake? We can assume that the list of states that have access to outer space - currently a dozen or so - will grow. These states may also shortly respond with mining programmes of their own. That means that the pristine conditions of the cradle of nature from which our own Earth was born may become irrevocably altered forever - making it harder to trace how we came into being. Similarly, if we started contaminating celestial bodies with microbes from Earth, it could ruin our chances of ever finding alien life there.

“Mining minerals in space could also damage the environment around Earth and eventually lead to conflict over resources. Indeed what right has the second highest polluter of Earth’s environment got to proceed with some of the same corporations in a bid to plunder outer space?”

Leaving aside the anti-American, anti-capitalist swipe, Oduntan’s argument could be applied to forbid even the peaceful exploration of space, lest space probes and astronauts “contaminate” the “pristine’ nature of space.

Both gentlemen try to invoke the Outer Space Treaty as binding against space mining, a dubious position. Oduntan attempts to claim that the notorious Moon Treaty, of which the United States is not a party to, is still binding as “customary law,” an odd position to take that suggest that the parties to an agreement can force their views on those countries that have chosen not to be parties by fiat.

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An event of cosmic proportions occurred on 18 November when the US congress passed the Space Act of 2015 into law. The legislation will give US space firms the rights to own and sell natural resources they mine from bodies in space, including asteroids. Although the act, passed with bipartisan support, still requires President Obama’s signature, it is already the most significant salvo that has been fired in the ideological battle over ownership of the cosmos. It goes against a number of treaties and international customary law which already apply to the entire Universe.

The new law is nothing but a classic rendition of the "he who dares wins" philosophy of the wild west. The act will also allow the private sector to make space innovations without regulatory oversight during an eight-year period and protect spaceflight participants from financial ruin. Surely, this will see private firms begin to incorporate the mining of asteroids into their investment plans.

Supporters argue that the US Space Act is a bold statement that finally sets private spaceflight free from the heavy regulation of the US government. The misdiagnosis begins here. Space exploration is a universal activity and therefore requires international regulation.

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 unbridled commercial exploitation of outer-space resources. These principles are found in agreements including the Outer Space Treaty of 1967 and the Moon Agreement of 1979.

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We have a precedent!   Noel pointed out in email that asteroid mining only needs a Guano Islands Act: no sovereignty, but US can protect the islands and commercial interests.

Commercial Space Bill Passed, Allows Asteroid/Moon Mining Goes to President for Signing

The House of Representatives has approved the U.S. Commercial Space Launch Competitiveness Act, paving the way for it to be sent to President Barack Obama for signature. The Senate approved an identical measure last week.

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Space Resource Exploration and Utilization

Establishes a legal right to resources a U.S. citizen may recover in space consistent with current law and international obligations of the United States. Directs the President to facilitate and promote the space resource exploration and recovery.

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Identifies Appropriate Oversight for the Commercial Development of Space

Directs the Office of Science and Technology Policy, in consultation with the Department of Transportation, Secretary of State, NASA and other relevant Federal agencies, to assess and recommend approaches for oversight of commercial non-governmental activities conducted in space that would prioritize safety, utilize existing authorities, minimize burdens on industry, promote the U.S. commercial space sector, and meet U.S. obligations under international treaties.

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The Intended Justice of International Space Law...

The ambiguous or indeterminate nature of legal norms in space law can be problematic. However, consensus may often develop around a general principle much quicker than around a detailed plan of action. The very existence of a principle can be significant because, at best, it can lead to positive change or at least can ensure the continuation of a dialogue. Such principles might have a conceptual autonomy to develop in ways that the actors most responsible for their inception, usually nations, had not foreseen. Their very ambiguity can render such evolution more likely.

In this essay, [Aganaba-Jeanty] examine[s] the intended justice outcome of space law by exploring the foundational principle of space law that “the exploration and use of outer space… shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.” [Aganaba-Jeanty] re-explore[s] the objective of a group of developing nations to find meaning to Article 1 of the Outer Space Treaty, which concluded with the adoption of a UN Declaration known as the Space Benefits Declaration.1 That declaration ultimately did not create any new rights for the developing nations and based on that experience, [Aganaba-Jeanty] argue[s] that it is almost impossible in today’s context to adopt legally binding rules in the space context that all can agree with.

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An Article in the New York Law Journal on Asteroid Mining Legalities

Over the last two years, U.S. business and policy makers have focused afresh on the commercial possibilities of the asteroids—the solar system's minor planetary objects. Most of these are located between Mars and Jupiter, while some are closer to Earth. Some have large deposits of precious metals and other potentially valuable substances. In the last few years, some private operators have announced plans to mine them commercially, a concept that, until now, has been exclusively the realm of science fiction.

In apparent response to these initiatives, the House of Representatives recently passed the "Space Resource Exploration and Utilization Act of 2015," H.R. 1508, part of a broader SPACE Act of 2015, H.R. 2262. The proposed legislation aims to assure private companies of title over "[a]ny asteroid resources obtained in outer space"—assuming, of course, that they are eventually able to get there. Although this initiative only began in the late part of the last congressional session, with relatively brief hearings, it was sponsored by key members of the House Committee on Space, Science and Technology. The bill now goes to the Senate (where it already has at least two potential adherents, including presidential candidate and Senator Marco Rubio). If enacted, this will be a bold, if controversial, development in U.S. space policy.

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A Review of International Treaty Obligations vs the ASTEROIDS Act

Given their desire to extract resources from asteroids, US space industry stakeholders seek assurances that whatever is extracted can be processed and sold like terrestrial resources. In order to encourage investment, these businesses need to know that outer space resources can be protected by property rights.

On July 10, 2014, Congressmen Bill Posey (R-FL) and Derek Kilmer (D-WA) introduced the ASTEROIDS Act.1 The Act seeks to facilitate the commercial exploration and utilization of asteroid resources to meet national needs and to promote the right of US commercial entities to explore and utilize resources from asteroids, in accordance with existing international obligations of the US.

On September 9, the House Committee on Science, Space and Technology, Subcommittee on Space, held a hearing titled, “Exploring Our Solar System: The ASTEROIDS Act as a Key Step.” The hearing addressed a host of topics, many of which were not germane to the Act. Fortunately, Joanne Gabrynowicz, Professor Emerita and former editor-in-chief of the University of Mississippi Journal of Space Law, offered testimony on the legal difficulties associated with crafting legislation for novel space activities. This article briefly explores some of these difficulties with a focus on international obligations that should be considered in an attempt to draft a law creating property rights over outer space resources.

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Space Property Bill Gets Mixed Reception in Congress

A bill that would grant property rights and other protections for commercial asteroid mining ventures received a mixed reception at a hearing of the House Science space subcommittee Sept. 10.

H.R. 5063, the American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act, would grant U.S. companies the rights to resources they extract from asteroids. The bill would also allow companies to take legal action if they suffered “harmful interference” during those activities by other entities under U.S. jurisdiction.

At the hearing, though, one space law expert raised questions about the bill’s language. “My professional opinion is that the ASTEROIDS Act, as written, is very, very vague,” said Joanne Gabrynowicz, professor emerita of space and remote sensing law at the University of Mississippi. “Strictly from reading the text, and based on legal knowledge, it definitely needs work.”

Gabrynowicz said she was concerned about the use of the term “harmful interference” in the bill. While the phrase is used in accords like the Outer Space Treaty, it refers to exploration activities by nations, not private entities. “Harmful interference has never been used that way in the treaties. It’s a completely novel application of that term of art,” she said.

That, she said, could raise questions about what constituted such interference.

She added that international legal opinion is divided on whether an entity that extracts space resources then owns those resources, ownership that the bill would recognize. “What we are talking about is resource extraction, which is a very volatile and contentious issue at the international level,” she said. “There will be a great deal of political and legal discussion catalyzed by this.”

One key member suggested that, because of those issues, the committee delay work on the bill until next year. “We could easily postpone our consideration” of the bill to carry out “additional, more in-depth explorations in the next Congress,” said Rep. Donna Edwards (D-Md.), ranking member of the space subcommittee.

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