A legal regime for asteroid mining needs to take into account international treaties, like the Outer Space Treaty. (credit: Planetary Resources)

The ASTEROIDS Act and hearing: some observations on international obligations

by Charles Stotler
Monday, September 22, 2014

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.

The ASTEROIDS Act

Specifically, the Act purports to create property rights in resources extracted from asteroids, stating: “Any resources obtained in outer space from an asteroid are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law.” The Act defines commercial asteroid resource utilization entities as “a person or company providing exploration or utilization services” that are either organized under US law or subject to US jurisdiction. Additionally, the Act creates a “first-in-time” provision for entities over which the US can assert jurisdiction, stating, “any exercise of a superior right to execute specific commercial asteroid resource utilization activities in outer space shall prevail if it is found to be first in time, derived from a reasonable basis, and in accordance with all existing international obligations of the United States.”

International space laws regarding outer space resources

Launches to, reentries from and activities carried out in outer space are governed by a series of treaties, the foundational instrument being the Outer Space Treaty.² The provisions of the Outer Space Treaty most relevant to the ASTEROID Act are as follows.

First, under Article I, the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries and shall be the province of mankind. Additionally, Article I mandates that outer space shall be free for exploration and use by all states, on the basis of equality, in accordance with international law, and that all states shall have free access to all areas of celestial bodies.

Under Article II, outer space is not subject to national appropriation by any means. Article VI renders states internationally responsible for national activities in outer space and mandates the authorization and continually supervision of non-governmental entities engaged in such activities. Article VIII recognizes that states retain jurisdiction and control over space objects that appear on their registry. Duties regarding registration have been further elaborated by the Registration Convention.³ Finally, Article IX mandates that a state enter into consultation with another State if it believes that its activities in outer space might interfere with the other State’s exploration and use of outer space.

These laws are considered below to offer some initial thoughts regarding the obligations of the US in formulating a property law regime for outer space resources.

Article I: Benefit and interest of all countries; province of mankind

The mandate that outer space be used for the benefit and interest of all countries and the classification of outer space as the province of mankind raise an issue as to whether spacefaring nations have an obligation to share resources obtained in outer space with other states. The positions of the Soviet Union and the United States during the negotiation and ratification of the Outer Space Treaty were that Article I constitutes a statement of general goals, that it does not create specific obligations, and that it was left to individual states to determine how the benefits of the use of outer space would be shared.⁴ These positions are subject to debate, rendering somewhat unclear the obligations arising out of Article I. Contrasting Article I with the Moon Agreement,⁵ however, offers some clarity.

Article 11 of the Moon Agreement declares the Moon and other celestial bodies to be the Common Heritage of Mankind (CHM), allowing for exploitation of resources on celestial bodies only under the supervision of an international regulatory authority, similar but not identical to the Law of the Seas (LOS) regarding deep sea beds.⁶ The perceived necessity of incorporating CHM language in the Moon Agreement calls into question whether Article I of the Outer Space Treaty creates obligations respecting a global commons and lends support to the US position, described above.

The US has not signed, ratified, or acceded to the Moon Agreement. Unless provisions of the Moon Agreement evolve into customary norms, the US will not be bound by any of its obligations.⁷ Most likely, the “province of mankind” language of Article I of the Outer Space Treaty describes outer space resources as res communis, similar to fish in the high seas,⁸ rather than as CHM, such as minerals in the deep sea beds. The development of property rights legislation for outer space resources would benefit from more clarity in this issue.

Article II: The prohibition on national appropriations

Article II renders outer space “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Article I expressly endorses the use of outer space, which includes extraterrestrial resources. Article II means that such use can never rise to the level of an appropriation: states (and their nationals) are free to use outer space but such use can never result in a legal claim to territory, as it sometimes did in terrestrial circumstances.

Although the adjectival use of “national” plays some role on the meaning of “appropriation,” private appropriations are prohibited as well.⁹ As discussed by Gabrynowicz during the ASTEROID Act hearing, a US District Court has already weighed in on this matter, interpreting the Outer Space Treaty as prohibiting private appropriations in outer space.¹⁰ What this means is that private entities cannot own real property in outer space, but it does not mean that private entities cannot extract resources there from. Less clear is the circumstance where an entire asteroid is consumed by such extraction, as this could be perceived as a de facto appropriation.

Article VI: Licensing outer space mining

Under Article VI of the Outer Space Treaty, states must authorize and continually supervise activities conducted in outer space by non-governmental entities. In the US, these duties have been delegated to the Secretary of Transportation, and, in turn, to the FAA Office of Commercial Space Transportation (AST), which accomplishes such duties by issuing experimental permits and licenses to commercial operators for launch and reentry.¹¹

Before US industry stakeholders can begin extracting resources in outer space, a similar license and monitoring process must be initiated. Such licenses need not be onerous to industry stakeholders and could serve as a means for establishing a system for first-in-time rights to particular asteroids. For instance, a license might be issued on the basis of an illustration of technical and financial wherewithal and could provide a right to mine an asteroid to the exclusion of other US entities for particular time period. In this manner, the US can meet its obligations arising from Article VI of the Outer Space Treaty and industry stakeholders can be assured that no other US entity is permitted to attempt to mine such asteroid.

Article VIII: Jurisdiction over outer space resources

Although Article II of the Outer Space Treaty prohibits the acquisition of territory in outer space, Article VIII mandates that a state retain jurisdiction and control over objects that appear on its registry. Such jurisdiction is not based upon territorial sovereignty and is sometimes referred to as quasi-territorial jurisdiction. It is not unlike the type of jurisdiction and control exerted by a state over a ship on the high seas or an aircraft in international airspace.

Objects over which this jurisdiction extends include the personnel, component parts, and payload aboard a spacecraft. Were materials launched into outer space used to construct a mining facility on an asteroid, such facility, including personnel and materials aboard the facility, would likewise fall under the jurisdiction of the state of registry. Everything onboard a spacecraft is subject to this quasi-territorial jurisdiction, including resources gathered from an asteroid and taken onboard a space object. Such jurisdiction can include the property laws of the state of registry. This situation is similar to the extension of US intellectual property law to inventions made aboard a US registered space object,¹² thereby providing a precedent for the extension of US property law into outer space notwithstanding a lack of territorial sovereignty.

Article IX: Safety/exclusion zones

Under Article IX of the Outer Space Treaty, states must take measures to avoid the harmful interference with another state’s exploration and use of outer space. Such freedom from harmful interference will extend to private actors engaged in mining operations on an asteroid.¹³ Because space activities have been recognized as ultra-hazardous,¹⁴ states should be entitled to create exclusive safety zones around mining facilities.

A tension exists between the Article IX guarantee of freedom from harmful interference and the Article I guarantee of free access to all areas of celestial bodies. In order to strike a balance between these interests, exclusive zones should be narrowly tailored in size and duration and limited to the extent reasonably necessary to carry out mining operations in a safe manner. By basing the size and duration of a safety zone on a measure of reasonableness, US law can be flexible enough to meet industry needs while adequately honoring the international obligation of free access.

The creation of an exclusive zone runs the risk of being a de facto appropriation prohibited by Article II. Preserving safety, however, meets states’ obligation of international responsibility arising under Article VI and removes the character of an appropriation: the prohibition on other States’ access is not based upon an appropriation but upon the safe functioning of the facility given the ultra-hazardous conditions. Precedents for such protective zones exist in the Law of the Sea.¹⁵ By limiting the exclusive zone to that which is reasonably necessary in geographic and temporal scope, the prohibition on national appropriation should be respected.

Conclusions

By adopting a property law regime that is narrowly tailored to fit within the general principles and customary international laws recognized in the Outer Space Treaty, the US can avoid the debacle of the Law of the Sea Convention, wherein developed and developing nations disagreed over the meaning of CHM, resulting in a legal paralysis in regards to the deep sea beds.¹⁶ By adhering to the strictures of the Outer Space Treaty, the US can place its domestic legislation beyond reproach, paving a way toward a reasonable and equitable scheme for the development of extraterrestrial resources and giving investor the assurances needed. The ASTEROIDS Act appears to be a useful first step in this direction.

Endnotes

1. The American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act of 2014, H.R. 5063, 113th Congress, 2d Session [hereinafter, “the Act”].
2. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
3. Convention on Registration of Objects Launched into Outer Space, 14 January 1975, 1023 U.N.T.S. 15.
4. Eric Husby, “Sovereignty and Property Rights in Outer Space,” (1994) 3 J. Int’l L. & Prac. 359, 364 [hereinafter ‘Husby’]; Kelly M. Zullo, “The Need to Clarify the Status of Property Rights in International Space Law,” (2001-2) Geo. L.J. 2413, 2419 [hereinafter ‘Zullo’].
5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December 1979, 1363 UNTS 3 [hereinafter ‘Moon Agreement’].
6. Zullo at 2424–30.
7. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, Articles 11–18.
8. Husby at 365.
9. Lee, Ricky L., “Article II of the Outer Space Treaty: Prohibition of State Sovereignty, Private Property Rights, or Both?” (2004) Aust. I.L.J. 128, 129 [hereinafter ‘Lee’]; Zullo at 2420.
10. See also, Henry R. Hertzfeld and Franz G. von der Dunk, “Brining Space Law into the Commercial World: Property Rights without Sovereignty,” (2005-06) 6 Chi. J. Int’l L. 81, 92 [hereinafter ‘Hertzfeld/von der Dunk’]; Zullo at 2420.
11. 51 USC §§ 50101, et seq.
12. 35 USC § 105; Herzfeld/von der Dunk at 88.
13. Zullo at 2430–1.
14. U.N. Int’l Law Comm’n, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, 149-141, U.N. Doc.A/56/10 (2001).
15. Assaf Harel, “Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?” (2012) 4 Havard Nat. Sec. J. 131.
16. Zullo at 2428.

Charles Stotler is an attorney licensed in to practice law in California and New York and a graduate student at the McGill Institute of Air and Space Law.

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