Op-ed | One Small Step for Space Resources

In 1980, I was on Oahu for Navy reserve duty and was invited to a party where the entertainment was a street performer named Barry McArdle, who wore a silver suit and identified himself as the “Moon Man.”

As part of his act he also sold lunar real estate, taking money from guests (and pedestrians) for a share of his rights to the moon via his “Lunar Development Corporation.”

The terms were $1 per lunar acre, which came with a great-looking certificate and a caveat that his rights were not yet secured.

On Nov. 25, President Barack Obama signed the Commercial Space Launch Competitiveness Act (H.R. 2262), which incorporates, as Title IV, H.R. 1508 — now termed the Space Resource Exploration and Utilization Act of 2015.

While the act as a whole is an important piece of legislation — and I congratulate Reps. Bill Posey (R-Fla.) and Derek Kilmer (D-Wash.) on the inclusion of H.R. 1508, as amended — it is hard for me not to liken some aspects of Title IV to the certificates provided by Barry McArdle.

A share issued by the Lunar Development Corp. in 1971 entitling the bearer to one acre of lunar surface (isoldthemoon.com).
A share issued by the Lunar Development Corp. in 1971 entitling the bearer to one acre of lunar surface (isoldthemoon.com).

While Title IV states, “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any 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,” it also takes pains to state (two paragraphs later), “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” The sense of Congress seems to be that it doesn’t have the ability to grant the rights that Title IV lists.

In fact, there is no entity in international law (not within the U.N. Outer Space Treaty of 1967 or the subsequent Moon Agreement of 1979) that has been established to grant title to any extraterrestrial body, and no sovereign entity can provide for a space resource to be “obtained in accordance with applicable law,” because there is no such law. No legal provision exists that would enable a U.S. citizen, or anybody else, to “own, transport, use, and sell the asteroid resource or space resource,” nor is there an entity that can provide for the protection of any portion of any celestial body. With this law, Congress is not claiming the required sovereignty or jurisdiction to do so either.

This may be a puzzling outcome for an enacted law, but perhaps it isn’t. The real benefit of this law is not the solutions it fails to provide, but that it focuses attention on the need to extend and elaborate the international agreements regarding the “exploration and use of outer space.”

There are already a number of positive articles in the Outer Space Treaty that are supportive of space commerce. Space exploration is to be undertaken for the “benefit and in the interests of all countries,” while providing for “free access” (Article I) and a focus on “international peace and security” (Article III). The moon and celestial bodies should be used “exclusively for peaceful purposes,” and the placement of weapons of mass destruction in space is prohibited (Article IV). Nations are responsible for actions undertaken by governments as well as for the “activities of non-governmental entities in outer space” (Article VI). Exploration of the moon and other celestial bodies should be conducted “so as to avoid their harmful contamination and also adverse changes in the environment of the Earth,” and “potentially harmful interference with activities of other States Parties” in the exploration and use of outer space is prohibited (Article IX).

Nonetheless, the provisions of the Outer Space Treaty that bring consternation to those who would like to sell real estate or mine asteroids in outer space are found in Article II, which states, “Outer 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.” It is precisely this article that the “sense of Congress” noted above is aimed at. As a treaty obligation under the U.S. Constitution, the Outer Space Treaty is “the supreme law of the land,” and there is no constitutional provision allowing this part of the treaty to be selectively ignored. But that surely isn’t the last word on the subject, nor should it be.

I am of the opinion that a new regime for the allocation of outer space resources, for both commercial purposes and as a means of preventing the harmful contamination of space environments, needs to be considered — with the Outer Space Treaty as a guide. There is a clear need for a new agreement among the parties to the Outer Space Treaty and related treaties that will provide a stable, internationally recognized, regulatory framework in which the commercial development of outer space can take place.

How does this law contribute to that? The goals of H.R. 2262 include a directive to the U.S. government to “facilitate commercial exploration for and commercial recovery of space resources” and allow U.S. citizens to do so “free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.”

While it is not hard to envision U.S. government regulation of a mining industry (though the Federal Aviation Administration is not the first agency that comes to mind in that regard), or that the FAA could regulate the launch of mining missions and the safe return of space resources (the bill limits “space resources” to “abiotic resources” so the USDA is out). But there is currently no U.S. government agency that has both the mandate and the expertise to regulate the harmful contamination of outer space environments, or to ensure that activities conducted in outer space, beyond Earth orbit, will not pose an unacceptable hazard to the environment of Earth. As such, and with the challenge presented by Outer Space Treaty’s Article II, the Space Resource Exploration and Utilization Act of 2015 can best be seen as a mandate for the U.S. government to seek a future solution to the issues it raises.

I hesitate to note that the International Seabed Authority (ISA) is one model for a regulatory regime that could be applied as an extension to the Outer Space Treaty, given the original provisions in the Convention on the Law of the Sea that were intended to allow the ISA to compete with the entities it regulates, as well as an almost complete lack of a scientific structure in the ISA to gauge the correctness and foresight of its decisions. However, the Convention on the Law of the Sea itself demonstrates a pathway to the required elaboration and extension of the Outer Space Treaty and related agreements in outer space law. Under such a convention, an international sovereign entity could be constructed that would provide for the international, rather than national, appropriation of outer space and a provision could be made to give that entity the ability to exercise that sovereignty to provide for both the commercial use of outer space and for the protection of those places in space that might warrant it.

Under such a regime — difficult to construct but essential to the future development of outer space — the goals espoused by the Space Resource Exploration and Utilization Act of 2015 might someday be attained, not just for U.S. citizens but as “the province of all mankind.”

Perhaps even for that original Moon Man.

John D. Rummel is a former NASA planetary protection officer. He is currently a visiting scholar at the Institute of Air and Space Law at McGill University and a senior scientist with the SETI Institute.