By: John Brainard
In passing the recent Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 (“U.S. SPACE Act”), Congress allows U.S. companies to boldly drill where no man has drilled before. On November 25, 2015, President Obama signed the U.S. SPACE Act into law after being adapted from a piece of similar legislation known as the U.S. Commercial Space Launch Competitiveness Act (“Commercial Space Act”). In Chapter 513 § 2, the legislation authorizes private corporations’ extraction and ownerships rights for “space resources.” Although many believe the U.S. SPACE Act will encourage investors and spur technological development, there has been a recent outcry from legal analysts who question whether it will withstand the test of International scrutiny.
The relevant portion of the Commercial Space Act asserts that private companies “shall be entitled to an asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained, in accordance with applicable law, including the international obligations of the United States.” This approach is similar to the long established property law principle of “catch and capture.” It seems to fall in line with the property rights found in preexisting “International Ownership Treaties,” like the regulations for international waters or the Moon Treaty. Proponents of the bill have consistently analogized this to the established practice of fishing in international waters. Under the applicable ownership treaty, no party owns the rights to any fish in international waters until it is caught by the party, who is subsequently the owner. Important caveats in need of mention are: (1) no entity may assert ownership of anything considered biologically alive; and (2) no entity may claim ownership or properties rights of any form in the celestial bodies themselves.
The main criticism of the U.S. SPACE Act is that it potentially contradicts internationally accepted provisions, set forth in the Outer Space Treaty of 1967 (“Outer Space Treaty”). The Outer Space Treaty explicitly 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.” As the text makes plain, violations are not limited to countries that falsely assert their sovereignty, but may be imposed for a much broader set of actions. This leaves the international space community with the leverage to adapt what constitutes a violation depending on what they believe to be in the best interests for humanity.
Supporters of the U.S. SPACE Act point to the ambiguity within the Outer Space Treaty, particularly the term “national appropriation,” which can be reasonably interpreted as “national” restrictions without mention of private corporations. But those who are hoping for clarification from a legal authority shouldn’t hold their breath. It is unlikely this issue will be resolved by the court system for quite some time, due to the fledgling technology and the esoteric nature of the field.
While some view the U.S. SPACE Act as an intrusion upon international authority and yet another example of American entitlement, others are seizing it as an opportunity. Deputy Prime Minister Etienne Schneider recently voiced Luxembourg’s apparent willingness to lead the charge in developing the required technology. Schneider even referenced legislation in the works that would establish R&D incentives as well as capital investments for Luxembourg-based companies that pursue space mining technology. But this is far from a concession to U.S. authority. Already the base of operations for famed satellite fleet “SES,” the proposals suggest Luxembourg has hitched their wagon to the commercialization of space. By taking great measures to assimilate with any International Ownership Treaties, the U.S. undoubtedly takes the prudent approach to the commercial exploitation of outer space minerals. Although rational, this approach is only a fair solution when all parties involved have comparable levels of technology or access to the property at issue. As a result, legal scholars disagree about whether, or to what extent, the US SPACE Act constitutes a breach of legislative authority. Some question whether it creates a sense of international inequality and reinforces the international hierarchy. Maybe fishing in international waters would be a better analogy if only a few individuals had resources and technology to efficiently sail in those waters. While the Act might jump-start development for space mining technology, it is another case where the rich get richer and the poor see another resource depleted to which they have no mean access.
There are subtle linguistic distinctions between the Outer Space Treaty and the U.S. SPACE Act which are critical to their understanding. The former states celestial bodies are “not subject to national appropriation,” while the latter pronounces that citizens “shall be entitled to an asteroid resource or space resource obtained.” While some brush this off as an insignificant distinction, even well respected space law societies have upheld the SPACE Act’s legitimacy. Although the Act’s semantic interpretation alone might be sufficient to justify its legal authority, it seems ethically disingenuous to pass a piece of domestic legislation that willfully
contravene the spirit of an established international treaty. Although, to be fair, Congress has never had a problem regulating matters that they don’t fully understand. Admittedly, it will be a long road to developing the requisite technology for space mining, but the private sector is excited for making it one step closer to a goal once considered bad science fiction and even recently dismissed as a boondoggle.
John is a Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk University Law School with a concentration in Trial and Appellate Advocacy. He earned his Undergraduate Degree from Boston College with a major in Corporate Systems.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.