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By Matthew Przywara

As humans continue to become more industrialized and technologically advanced, the natural resources we use to fuel that growth become less available. Since the 19th century our resource extraction and processing of fossil fuels and precious metals has increased rapidly to keep up with our ever-increasing energy consumption and technological advances. While these resources continue to dwindle here on Earth, many of them are readily available on the near Earth asteroids hurling through space. The resources available on these asteroids have been estimated to be worth trillions of dollars. This represents an enormous economic opportunity for a company who can successfully mine these resources and bring them back to Earth, all while not adding to the further degradation and scarcity of the particular resource’s availability back on Earth. However, there is still a question of whether a company who has successfully developed the capabilities to mine and extract an asteroid’s resources can legally do so.

Recently the United States passed the U.S. Commercial Space Launch Competitiveness Act (“CSLCA”) “to facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions”. See U.S. Commercial Space Launch Competiveness Act, Pub. L. No. 114-90, 129 Stat. 704 (2015). Most notably, the Act permits a U.S. citizen “engaged in the commercial recovery of an asteroid resource or a space resource” to possess, own, or sell that recovered resource. See U.S. Commercial Space Launch Competiveness Act, § 51303, 129 Stat. 721 (2015). This is a very promising development for U.S. based companies like Deep Space Industries and Planetary Resources, Inc. who have secured significant investment and are actively developing the technology and spacecraft needed for asteroid mining. However, this Act may be in contravention of U.S. international commitments regarding outer space as defined by the Outer Space Treaty of 1967.

The Outer Space Treaty of 1967 established outer space as the common heritage of all mankind, a res communis omnium, and that it’s exploration and use shall be for the benefit of all mankind, barring any claims of appropriation or national sovereignty. Any company or business entity that develops the technology to mine an asteroid will have citizenship under some nations laws and thus under the regulation and licensing of that particular country. Accordingly, a sovereign nation is responsible for any of its national’s activities in outer space, including that of a private company. For example, a sovereign like the United States, who licenses a private company, like Deep Space Industries, to mine an asteroid would be responsible for their actions in outer space. This includes any claims of title or possession to an asteroid and/or it’s resources by the private company, which would then be imputed to the U.S., and quite likely in contravention of the United States’ international obligations under the Outer Space Treaty barring claims of appropriation or national sovereignty and to keep outer space exploration and exploitation of it’s resources for the benefit of all mankind. However, Article II, the relevant provision of the Outer Space Treaty that defines its non-appropriation principle, does not expressly address the extraction of outer space resources for their commercial use. At the time, in 1967, the exploitation of outer space resources by private companies was not contemplated or foreseen and therefore not addressed. For this reason, there have been different interpretations of Article II and how it should be applied to private entities moving forward.

Accordingly, the most recent U.S. legislation addressing this issue, the CSLCA, is just one interpretation of Article II and how it should be applied. It is yet to be seen how this legislation will be received by the international community as a whole, however, Luxembourg has also passed a law giving companies ownership of asteroid resources they successfully mine. As the technology continues to develop and the reality of asteroid mining gets closer, the international community will be pressured into addressing this issue head on due to the enormous economic consequences. Comparatively, this Act is consistent with consonant areas of customary international law such as the law of the sea, the deep-sea bed, and Antarctica, among others. As a result of the United States’ powerful international influence and it’s interpretation of Article II endorsing private commercial exploitation of space or asteroid resources, it’s most recent legislation will likely be a driving force in developing a general international acceptance regarding this issue, molding the resulting international law to conform accordingly. In fact, Luxembourg’s recent legislation demonstrates another country’s endorsement of the United States’ interpretation of Article II. Looking forward, this will likely pressure other countries to acquiesce and support this view to ensure they do not miss out on the opportunity for their own share of potential wealth the opportunity of asteroid mining presents. Ultimately, this will likely lead to either the amendment of the Outer Space Treaty or to a new international treaty addressing and regulating this new frontier of exploration, resource exploitation, and economic opportunity.

Student Bio: Matthew is a staff member on the Journal of High Technology Law. He is currently a 2L at Suffolk University Law School. He holds a B.S. in Sociology and a minor in Criminal Justice from The University of Connecticut.

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.



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