Leiden Law Blog

Will the United States rule space resource mining?

Will the United States rule space resource mining? ​Photo: NASA/LRO

On Nov. 25, the U.S. President signed a law supporting entrepreneurs with aspirations of economic ventures beyond Earth orbit. The Space Resource Exploration and Utilization Act of 2015, part of the Commercial Space Launch Competitiveness Act, provides that U.S. companies engaging in commercial recovery of space resources are entitled to possess, own, transport, use and sell the space resources obtained. The law explicitly intends to be consistent with U.S. obligations under the 1967 Outer Space Treaty, which has been signed by over 100 nations and remains the pre-eminent international agreement governing all activity in outer space.

One of its provisions is Article II, which states that outer space, including the moon and other celestial bodies, is not subject to national appropriation. Some are of the opinion that Article II makes it illegal to extract space resources, but this is not supported by international consensus. Indeed, Article II is balanced by Article I, which states, “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, and there shall be free access to all areas of celestial bodies.” The U.S. space resources law is not about claiming territory, nor an assertion of sovereignty or appropriation of “celestial land”; it is about confirming and codifying rights for U.S. private citizens/companies to peacefully explore, extract and own resources, like the U.S. and Soviet governments did back in the 1960s and 1970s, and like other governments and companies intend to do in the future.

The new law explicitly codifies rights for the private sector that were only implicit in the Outer Space Treaty. It adds a level of certainty for investors and provides a foundation for building additional regulatory frameworks in the United States and elsewhere.

This does not mean that a gold rush for space resources lies ahead; the legislation provides 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.” The United States, as a signatory to the Outer Space Treaty, is obliged to make sure that any private company it authorizes or licenses will not violate the state’s treaty obligations. These include that the exploration and use of space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind and promote international cooperation, that the moon and other celestial bodies may be used only for exclusively peaceful purposes, harmful contamination and interference shall be avoided, etc.

It may be in the best interest of the U.S. and its companies to gain international support for the confirmation of the rights of private entities. Some form of international agreement on managing space resource exploration and utilization may be a means of gaining such international support, and there are signs that this is recognized. Several U.S. companies and organizations take part in the recently created Hague Space Resources Governance Working Group. This group, with global, multi-stakeholder participation and hosted by Leiden’s Institute of Air and Space Law, aims to prepare the basis for a regulatory framework for space resource activities in the next two years.

Nearly 60 years ago we began our journey as a spacefaring species. Today there are private-sector companies like Moon Express and others who seek to peacefully and responsibly explore and unlock the resources from outer space for the benefit of our home planet, at their own risk and cost, undertaking this goal with private investment. These companies should be encouraged and supported by the international space law community, by acknowledging the Outer Space Treaty provisions as already inclusive, and by contributing to the creation of clarifications supporting such activity, as the U.S. has taken the lead in doing. The new U.S. law will help protect these activities that could one day help the economies of planet Earth and secure our future in space.

A longer version of this blog was published in SpaceNews.

Latest news: the IISL Board of Directors adopted a Statement on Dec. 20, expressing the view that the new U.S. law does not violate the Outer Space Treaty and can be a starting point for the development of international rules in this field.

1 Comment

Colleen M. Driscoll, PhD
Posted on January 11, 2016 at 19:03 by Colleen M. Driscoll, PhD

Tanja and Bob: I do wonder, however, as space commercialization grows, how much of the mined planetary resources will really benefit our “home planet” and how much will benefit only the U.S. and the commercial companies. Will the interests of the non- and limited-space faring States be forgotten just as the rights and needs of the people of the developing countries have been overridden on earth by those States with the financial and technological resources to exploit earth’s resources for their own gain?

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