Op-Ed | Don’t muddy the message to space mining companies

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Last November, Congress passed the Commercial Space Launch Competitiveness Act (CSLCA) and, in doing so, sent a clear message to space entrepreneurs who plan to extract natural resources from asteroids and other celestial bodies: that they will be able to operate free from harmful interference and may assert ownership over any resources that they extract. Although actual asteroid mining may still be decades off, investors need this assurance now if they are to continue to fund the companies that are developing technology that will be a cornerstone of an expanded human presence in space.

However, the clarity of this message is in danger of being muddied by allegations from delegates of the UN’s Committee on the Peaceful Uses of Outer Space (COPUOS) that the CSLCA violates international law. The most vociferous opposition to the legality of the CSLCA was voiced in statements by Brazil and Russia submitted during the February meeting of the Scientific and Technical Subcommittee. They accused the U.S. of acting unilaterally with “total disrespect for international law order [sic]” in enacting legislation that contains “inconsistencies” with the Outer Space Treaty (OST), specifically the Article II prohibition of national appropriation.

Yet, these statements provide virtually no legal foundation for such allegations and ignore explicit language in the law disclaiming any intent to appropriate property or assert sovereignty: “[B]y the enactment of this Act, the United States does not… assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” There can be no appropriation or claim of sovereignty in the absence of a Congressional assertion of such claim — and here we have an explicit disclaimer.

Anyone familiar with the lengthy drafting process that led to the adoption of the CSLCA knows that those involved with the bill paid great attention to compliance with international law. Earlier bills regarding asteroid mining raised concerns in Congress about compliance with Article II, particularly due to the inclusion in the earlier proposed ASTEROIDS Act of a “first in time, first in right” rule for entities competing for rights to mine a particular asteroid. The language that was ultimately adopted in the CSLCA was pared back to provisions that merely ensure ownership rights over extracted resources, but provide no rights over mining sites or resources in situ.

The question at the heart of this debate comes down to this: is private ownership of extracted resources a permitted “use” of celestial bodies under Article I of the OST, or is it prohibited “appropriation” of a celestial body under Article II? Critics of the CSLCA should be aware that the weight of the experts is gathering on the side of permitted use. The Board of Directors of the International Institute of Space Law (IISL) issued a statement in December of last year expressing the opinion that the right to assert private ownership over extracted resources was an acceptable interpretation of the OST.

The IISL statement also observed that there is no international agreement that specifically addresses this issue. The Permanent Court of International Justice (the predecessor of the International Court of Justice) decided long ago in the Lotus case that, in the absence of a specific prohibition, sovereign states are free to act. Critics should also keep in mind the domestic scope of the CSLCA: this guarantee of ownership only applies to entities under U.S. jurisdiction. Whether other countries wish to enact a similar law or enforce the U.S. law in their courts is left entirely to the discretion of those countries.

Another important voice in this debate was raised in a position paper recently issued by the Space Generation Advisory Council, an international organization of young leaders in the fields of space law and policy. This paper supports the legality of the CSLCA based on a straightforward application of the Vienna Convention. As the paper points out, the “ordinary meaning” (a touchstone of treaty interpretation) of the word “use” according to the Oxford English Dictionary includes “to take or consume (an amount) from a limited supply.” It is clear that the next generation wants asteroid mining to begin. As succeeding generations will be the ones who develop these industries and technologies, COPUOS should listen to their voice.

The second point of criticism, that the U.S. “disrespected” the international legal process by acting unilaterally, has no bearing on the legality of the CSLCA. If the U.S. were a party to the Moon Agreement, then there may have been an obligation to engage in an international process to develop regulations for resource extraction. But the U.S., like Russia and Brazil, is not a party to the Moon Agreement. In light of this, the U.S. is free to engage in domestic regulation of mining activities.

Moreover, in stark contrast to accusations of the U.S. disrespecting the international legal process, the resource extraction language and numerous other provisions within the CSLCA are examples of the U.S. ensuring conformity with its obligations under the OST. Under Article VI, the OST requires “continuing supervision” of national activity. When U.S. companies began to lay plans for asteroid mining, Congress was compelled to legislate and regulate this activity.

The COPUOS must not take this issue lightly. The words of critics are not harmless. Investors need assurance, and the appearance of international discord on this issue threatens investor confidence. We need to come together as an international community to commit to compliance with the Article II prohibition of national appropriation, but just as importantly, we need to respect Article I of the OST and the principle of free use of space.

Mark J. Sundahl is Associate Dean and Professor of Law at Cleveland State University and Chair of the International Space Policy Working Group of the FAA’s Commercial Space Transportation Advisory Committee.