Mining Outer Space: Who Owns the Asteroids? – by Timothy G. Nelson (New York Law Journal – July 29, 2015)

http://www.newyorklawjournal.com/

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.1

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.2

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”3—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.4 The bill now goes to the Senate (where it already has at least two potential adherents, including presidential candidate and Senator Marco Rubio).5 If enacted, this will be a bold, if controversial, development in U.S. space policy.

The ‘Law’ of Space

Until the Sputnik launch in the 1950s, few steps had been taken in defining the legal rules relating to outer space. Indeed, the only circumstance in which “ownership of space minerals” was relevant was if someone was fortunate (or unfortunate) enough to encounter a meteorite, i.e., the remnants of a meteoroid (a solid body traveling through space) that has survived collision with the Earth.

One pre-“space age” case involved a property dispute over a meteorite that landed in Forest City, Iowa, in 1890; another dealt with disputed claims to the “Willamette” meteorite situated in Oregon. Both were decided in favor of the owner of the land in which the rock was found.6

In 1967, there was a successful effort to define the basic principles of space law. The Outer Space Treaty of 1967,7 drafted during the “space race” and rapidly embraced by the community of nations, contains a series of general rules intended to promote the peaceful use of outer space.

Most relate to navigation and space flight—reflecting the aspirations (and limits) of the era. Two, however, are potentially relevant: Article I of the OST states that “[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”8

Article II states 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.”9

Together, these articles mean that space cannot be subdivided into national “colonies,” in the manner of 19th century European powers. But there is a difference between appropriation of territory (in this colonial sense) and appropriation of mineral resources, as occurs in commercial mining—and OST says nothing in particular about the latter.10 Attempts to fill this “gap” in the 1970s, in the form of a further treaty to regulate commercial exploitation of celestial bodies, resulted in open ideological confrontation.

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