Building off US law to create an international registry of extraterrestrial mining claims
by Will Gray
|The Act’s endorsement of private property rights to extraterrestrial resources seems to violate the appropriation clause of the Outer Space Treaty.|
In this essay, I discuss possible answers to these questions, and speculate as to which answers are the most likely to become reality. I then proceed to a discussion of the ideal solution to these questions: the development and implementation of an international mining claims registry, which I believe will resolve each of the above issues in ways that are satisfactory to industry actors, as well as national governments interested in promoting and regulating space mining activities.
The Act has prompted a flurry of concern that Congress has acted in violation of US treaty obligations.3 The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (“the Outer Space Treaty”), of which the United States is a signatory, establishes in Article II that “[o]uter 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.”4 As a legal term, appropriation of a resource means converting that resource into private property.5 Thus, the Act’s endorsement of private property rights to extraterrestrial resources seems to violate the appropriation clause of the Outer Space Treaty.
But perhaps appropriation by different types of actors is permissible. Even if “national appropriation” is banned, what about purely private appropriation by corporate actors?6 This, too, appears to be barred by the Outer Space Treaty. Article II’s ban on “national appropriation” extends to citizens and corporations of signatory countries by Article VI: “States… shall bear international responsibility for national activities in outer space… whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” (Emphasis added). So, just as appropriation of extraterrestrial resources by national space agencies is forbidden, appropriation by people and companies within any signatory country is also forbidden.
Congress addressed the apparent conflict between the Space and the Outer Space Treaty in a confusing manner. The Act states that “[a] United States citizen engaged in commercial recovery of an asteroid resource or a space resource… 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[.]”7 On its face, this appears to contravene the Outer Space Treaty’s ban on appropriation of extraterrestrial resources. It is difficult to imagine that one could be “entitled to a … resource” one has recovered, and yet not have appropriated it in the process.
In the next clause, however, Congress conditioned this entitlement by limiting it to resources “obtained in accordance with applicable law, including the international obligations of the United States.”8 (Emphasis added). This clause is ambiguous. It either means that resources must be obtained in accordance with applicable law (including US treaty obligations), or it means that the possession, ownership, transport, use, and sale of obtained resources must be done in accordance with applicable law (including US treaty obligations). Either interpretation places the property entitlement granted to space miners under the Act at odds with the Outer Space Treaty’s ban on appropriation by signatory national governments and any entities operating within their borders. In other words, the Act entitles miners to the resources they mine in space, but requires that no extraterrestrial mining occur pursuant to the Outer Space Treaty. Strangely enough, this would make attempted extraterrestrial mining illegal, but completed extraterrestrial mining legal.
Despite the contradiction between the language of the Outer Space Treaty, legal scholars both within and outside the United States have been leery of claiming that the Act contradicts the Outer Space Treaty.9 The Netherlands-based International Institute of Air and Space Law, for example, issued a position paper shortly after the passage of the Space Act suggesting one way of finding the Space Act and the Outer Space Treaty compatible.10 The thrust of the short, three-page paper is that the meaning of “national appropriation” is unclear vis-à-vis corporations and other non-governmental actors.
In formulating this interpretation, the Institute relies on Article I of the Outer Space Treaty, which provides for the right to “free exploration and use [of outer space] by all states,” and on the failed successor treaty to the Outer Space Treaty, the 1979 Moon Agreement. The Moon Agreement attempted to bind countries to the rule that no natural resources in outer space could become “property of any… non-governmental entity or of any natural person.”11 But the United States refused to sign the Moon Agreement.12 By refusing to sign the Moon Agreement, the Institute argues, the United States established a precedent for claiming that the national appropriation clause in the Outer Space Treaty does not create a blanket ban on any claims to natural resources in Outer Space.13
|As those setting the first rules in the field, it is in the interests of Luxembourg and the United States to set up the best possible system for recognizing space mining claims.|
Regardless of the status of space mining under international law, it is likely that American space miners will feel comfortable pursuing claims so long as US law supports them. If possession is nine-tenths of the law here on Earth, it may be everything in space, where the reach of international law is weak. While United Nations treaties restricting space resources may be ignored with domestic governmental backing, space mining companies are likely to feel skittish about pursuing space mining if there is nothing stopping space miners in other countries from pursuing the same target asteroids. In this regard, other countries’ passage of laws similar to the Space Act may determine the progress of codifying international property rights in space.
Not long after Congress passed the Act, Luxembourg—home to SES, one of the world’s largest communications satellite operators—announced its own plans to spur on asteroid mining projects within its borders, including regulatory and financial incentives.14 It will be interesting to see how Luxembourg and the US, as the first countries to establish domestic space mining protocols, begin to recognize claims by corporations operating within each other’s borders.15 The two countries will likely create their own domestic registries of mining claims, which can then be referenced to one another. This will serve as a good starting point for the development of customary international law governing how countries protect their own corporations’ rights in space.
As space mining ventures operating out of more countries develop, however, an international registry of space mining claims will be needed. As those setting the first rules in the field, it is in the interests of Luxembourg and the United States to set up the best possible system for recognizing space mining claims so that other countries are willing to join the registry and recognize existing Luxembourgian and American claims.
Let’s assume that both HR 2262 and the Outer Space Treaty are compatible in the way that the International Institute of Space Law authors suggest––that is, mining by national governments is prohibited, but mining by private corporations is fine. Let’s also assume that the United States, Luxembourg, and other countries with major space programs, such as China, India, Russia, and Japan, agree to form an international registry of mining claims by space mining corporations operating out of each country. So, under this new international registry, what does a corporation do to stake its claim to an extraterrestrial resource?
This question returns us to an internal problem within the Act: What does it mean for a corporation to “obtain” a space resource? At what point in the process of finding a suitable near Earth asteroid, accumulating the capital and technical knowledge needed to pursue mining operations, launching a mining spacecraft, sending it to an asteroid, beginning its mining operations, completing extraction of resources, and returning it to Earth, does a company acquire exclusive title to the proceeds of the mining operation? Mining an asteroid will likely be both extremely capital intensive, as well as slow.16 Some legal protection of miners’ claims is necessary to prevent rivals from attempting to mine from the same asteroid, or from directing prime targets for mining out of their planned orbits in attempts to sabotage rivals. It is equally clear, however, that miners should not be given property rights to space resources merely by pointing out the asteroid they are thinking of mining and saying, “That’s ours now.”
|If possession is nine-tenths of the law here on Earth, it may be everything in space, where the reach of international law is weak.|
I propose that space miners’ rights to claim exclusive title to an asteroid must depend both on continuing pursuit of asteroid resources, as well as the likelihood of success that they will succeed in extracting those resources and returning them to Earth or Earth orbit.17 Several analogous areas of property law are relevant to this analysis, because they were developed to address similar questions of prior rights and title that space property law is now poised to cover. Through a discussion of American hardrock mining law and proposed deep sea mining legal regimes, I will illustrate the consequences of allowing property rights to accrue to takers who are not sufficiently temporally and spatially proximate to extraction and possession of target resources. I also will analyze the consequences of imposing rules defining the likelihood that substantial investment into an appropriative enterprise will result in actual mining and appropriation. In addition, I will use these two examples to touch on a couple ancillary issues that illustrate the practical challenges likely to face an international extraterrestrial mining claims registry.
The most ready corollary to space mining is, of course, mining here on Earth. The development of American mining law is particularly instructive because its early implementation was so ill-conceived.18 The 1872 Mining Law and its immediate predecessors,19 which opened up the western United States to hardrock mining operations, managed to be both economically inefficient and detrimental to the environment. At the core of the problem is the Mining Law’s inclusion of the principle of free access, which allowed any claimant to enter onto federal lands and lay exclusive claim to a mineral right. The implicit, and controversial, assumption behind free access is that the extraction of minerals is the best use of land. As embodied in the Mining Law, free access had three aspects: (1) access was at the miner’s discretion; (2) access included title to the land surface; and (3) the access was unregulated by the government.20
The vagaries of the Mining Law allowed for gross abuses. Those most applicable to space law involved the location of mining claims. Claimants to mineral resources under the Mining Law were able to gain title to vast swathes of territory, often with the ability to exclude others, even when their uses were unrelated to mining.21 In one instance, a man laid claim to the most popular tourist portions of the Grand Canyon, after it had already been made into a forest reserve in 1893, and without his ever actually engaging in mining.22 While there were some restrictions on how much land could be claimed, these limitations were easily circumvented by the mining companies, which set up dummy corporations to acquire more land that they then sold to their parent companies.23 It had been one of the primary goals of Congress in passing the Mining Law to encourage exploitation of minerals, which was considered to be good for the development of the American West, and the US economy as a whole.24 Yet, many of the companies sat on their claims and have not begun mining operations to this day.25
|Developing appropriate legal provisions to govern ownership of space resources is particularly important given the potential longevity of extraterrestrial economic activity.|
A similar problem arises when we consider the meaning of the word “obtain” in the Act. As noted above, a principal goal of the Act is to “facilitate commercial exploration for and commercial recovery of space resources by United States citizens.”26 In light of this purpose, should “obtain” be construed so that a company gains rights to a resource once it has landed on an asteroid and begun to mine it? But this might leave companies too vulnerable. What if the company sinks hundreds of millions of dollars into researching the best possible target asteroid, preparing all of the requisite mining equipment, leasing or investing in launch technology, loading it onto a rocket, launching it, and traveling to the asteroid, only to find that a competitor, having read the headlines about the company’s plans, launches the day before them, lands on the asteroid, and begins to mine it mere hours before they have arrived?
Or, should “obtained” be interpreted to mean that a company gains title to a resource as soon as it has gathered the requisite astronomical data charting an asteroid’s location in space needed to plan a mining mission? But this might result in the same problem that plagued the Mining Law, with companies pointing to as many asteroids as possible and saying: “That’s mine.” All near earth asteroids would quickly be claimed.
Of course, we will likely end up with something in between these two extremes. Congress, or some regulatory agency empowered by Congress, will have to determine how best to delimit the meaning of “obtain” after weighing the importance of promoting industry development, protecting resources for future users, and achieving administrative workability. It is also important to get things right the first time. Despite extensive attempts to reform it, the basic provisions of the Mining Law persist nearly a century and a half after its passage.27 Developing appropriate legal provisions to govern ownership of space resources is particularly important given the potential longevity of extraterrestrial economic activity.
Another analogous area of law to space mining is deep sea mining. Newly accessible resources, such as manganese nodules and genetically precious deep-sea creatures thriving near geothermal vents, have drawn the interest of scientists and extractive industries. The current legal regime governing these areas is woefully inadequate to address basic questions of use and ownership,28 although there are at least customs that determine how deep sea mining operations are conducted.29 As of now, deep sea miners have the right to mine, but not to claim title to, any resources they find in the deep sea beds.30 This is conceptually strange, particularly given the high value of the genetic and mineral resources found near deep sea vents.31 To understand why there has been so little development of clear international procedures to register claims in a field that has seen strong industry interest and investment since the 1980s, one must understand the nature of these sites, as well as the interests of the players planning to exploit them.
Movement of the Earth’s tectonic plates creates trenches, fracture zones, and mountain ranges within the earth’s oceanic basins.32 Hydrothermal vents sometimes occur in divergent and convergent zones between plates. At these vents, seawater enters magma chambers below the ocean floor, is superheated, and emerges laden with chemical compounds that are deposited onto the surrounding area, and also serve as the sustenance for unique vent fauna.33 The rich mineral deposits surrounding the vents make them valuable to miners, while the biologically distinct species that manage to survive in these extreme zones make the vents immensely interesting to scientists.34 However, neither scientists nor for-profit corporations have clearly established rights to put these resources to use.
Since antiquity, the seas and all land they touch have been considered the common heritage of all mankind, and thus not subject to ownership by one person or entity.35 This was not a problem until the resources contained by the seas began to be exploited. Whales were the first major resource over which individuals from different countries began to fight.36 Whalers adopted customs to settle disputes over property claims to whale carcasses. These customs were then codified into law in many countries, and while they were used to settle disputes between whalers from the same nation when they returned home, the rules of capture at sea largely remained the original customs of the whalers.37
In recent years, the United Nations has attempted to create international rules for the governance of the seas and the resources found within them.38 To that end, the third UN Conference on the Law of the Sea (UNCLOS) established an International Seabed Authority, which was to be responsible for mining the seabed “on the behalf of mankind as a whole” and for granting private contracts to mine the seabed.39 The United States has largely disregarded the Seabed Authority and its rules, opting instead to enter into its own agreement with seven other countries.40 The Seabed Authority and its proponents subscribe to the view that ocean resources are res communes and must thus be shared equally. The United States and its partners assert, by contrast, that ocean resources are res nullius and thus open to the taking of the first comer.41
|The easiest way for an international registry to be established would be for the US and Luxembourg to agree to a set of rules governing asteroid mining, then apply those rules through domestic legislation to companies operating within their borders.|
Within the United States, the federal government has exclusive authority to regulate submerged lands, and by extension any submerged, offshore mining operations.42 United States companies have therefore introduced bills into Congress to regulate deep sea mining. One such bill was introduced as a stopgap measure intended in part to spur timely international negotiations regarding the seabed, and force the United States to adopt the rules promulgated by UNCLOS and the Seabed Authority.43 However, negotiations for the United States to join UNCLOS remain unsuccessful, mostly because the US is unwilling to engage in the profit-sharing that UNCLOS’s res communes view of the seabed requires. As a further stopgap measure, in 2000 Congress adopted the Deep Seabed Hard Mineral Resources Act, which protects commercial recovery of deep sea resources while also encouraging the Secretary of State to pursue negotiation with UNCLOS.44
Meanwhile, commercial interest in pursuing manganese mining has steadily grown as the cost of inland manganese mining has increased.45 The United States has issued licenses for deep seabed exploration,46 yet efforts to mine manganese at the deep sea vents remain stagnant due to investors’ leeriness in jumping onboard with miners who may not have exclusive rights to the ore that they claim.47
It would be easy to imagine a similar situation developing in space law. The United States, recognizing the long-term strategic value of developing extraterrestrial mining and manufacturing, could withdraw from (or simply ignore) the Outer Space Treaty and begin mining operations without any international approval.48 Of course, this outcome is undesirable for everyone. The US suffers diplomatically and economically over the long-term when it is unable to procure international recognition of its corporations’ mining claims. Meanwhile, smaller nations would suffer because they would lose what little power they have to enjoy the fruits of the nascent space industry. Thus, development of clear international rules governing extraterrestrial mining rights, and property rights more generally, will generate economic certainty and increased opportunity to benefit for all interested parties.
The Mining Act of 1872 and failed attempts to codify international manganese ocean mining rules illustrate two primary concerns that must be taken into account for an international registry of extraterrestrial mining claims to be successful. If space miners are able to lay claim to space or asteroid resources too easily, without any incentive to pursue claims actively, near Earth asteroid resources will quickly become fully claimed and underutilized, much like the minerals of the American West. By contrast, if the prerequisites for laying claim to asteroid resources are too onerous—or have not even been established as in the case of deep sea manganese mining—companies will be unwilling to pursue what is already a risky, capital-intensive venture.
Thus, the question becomes where best to draw the line at which companies gain vested property interests in the space resources they pursue. There are roughly ten stages to an asteroid mining project, any one of which might be the threshold stage at which space miners gain a property interest in the resources they pursue:
A registry for mining claims might allow for the registration of a claim, and for the acquisition of varying levels of property right, at any of these stages. Given the fledgling nature of the current asteroid mining industry, the balance should be struck in favor of protecting miners’ investments so that no additional barriers are placed in the way of miners. To that end, some degree of title to any resources successfully extracted should pass, at latest, upon launch from Earth, provided the mining payload launched is more likely than not capable of successfully returning resources.49 Vesting conditional title in asteroid resources upon entry into orbit will create a clear point towards which companies can aim in order to feel secure in their investment, and yet is not so early in the process of mining that it could be abused to harm other companies. Title should be conditioned on continuing, diligent efforts to extract and return resources to Earth or low Earth orbit.
In the long term, however, a registry should encourage new entrants to the industry and stop the formation of monopolies on space resources. To do this, actual extraction and meaningful use of resources should be encouraged. Since the feasibility of mining will have been well demonstrated, and the publicity benefits of a return mission will have disappeared, industry rules should incentivize competitive and active exploitation of resources. The possibility of two mining companies sending simultaneous missions to the same asteroid is, in a well-developed industry, acceptable.
|In the long term, however, a registry should encourage new entrants to the industry and stop the formation of monopolies on space resources. To do this, actual extraction and meaningful use of resources should be encouraged.|
Other issues that would need to be taken into consideration in the creation of a registry for mining claims include the possible need to differentiate between different types of extraterrestrial bodies (such as asteroids and comets), as well as the need to make it clear to companies and their host nations that mining of certain extraterrestrial bodies is impermissible (e.g. planets and bodies of scientific interest.) In addition, to allow for mining rules to evolve over time, any international registry set up in the near future should include a sunset provision to allow for a reformulation of rules that better serve long-term asteroid mining.
The easiest way for an international registry to be established would be for the US and Luxembourg to agree to a set of rules governing asteroid mining, then apply those rules through domestic legislation to companies operating within their borders. Other countries could then join the registry by adopting the same rules. They would be incentivized to do so because their own companies would otherwise face no protection from competing claims from companies in other countries.
It may not be long before space miners are able to register claims staking exclusive mining rights that other United States companies are subsequently compelled to recognize. However, any American registry of claims will be of substantially less value unless it is recognized by other countries, who will presumably have their own registries to cross reference with that of the United States. As mentioned above, Luxembourg recently passed commercial space mining laws to protect its own domestic mining efforts.50 Depending on the willingness of Luxembourg and the United States to recognize claims by space miners operating out of each other’s jurisdictions, the two countries may find themselves creating the first international registries of extraterrestrial mining claims.
There is likely to be one other major factor that determines the development of such registries. One of the primary concerns of the Outer Space Treaty is profit sharing. The Treaty asserts that space is the common inheritance of all mankind and thus requires that all mankind benefit from it as equally as possible.51 It is possible that signatories to the Outer Space Treaty may treat this requirement as binding on their domestic space miners. However, there may be a way for space miners to comply without this provision without sharing their profits directly, and thus cut into their profit margins. The simplest way to allow participation by smaller countries may be for them to buy shares in existing ventures. That way, both the profits and the risk are shared. As part of the international registry negotiations, countries may even impose a stock-sharing requirement on any internationally-recognized space venture, so that any venture would need, for example, at least 10 percent of its shares available for purchase. Purchase priority could be granted to poorer nations and to those without space mining capabilities.
Of course, this is only one solution to concerns about profit sharing. Whatever happens, it will be exciting to see how old notions of property that have been at the heart of our societies since time immemorial become incorporated into new forms of property for the benefit of all nations. It is from bold laws like the Commercial Space Launch Competitiveness Act, and the fundamental underpinnings of the Outer Space Treaty, that this process will begin.