Op-ed | The Space Pioneer Act

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Two companies, Planetary Resources and Deep Space Industries, have begun work to develop asteroid mining capabilities. In July, U.S. Reps. Bill Posey (R-Fla.) and Derek Kilmer (D-Wash.) introduced H.R. 5063, the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act. This bill would protect mining companies’ personal property rights in extracted resources. The bill has been referred to the House Committee on Science, Space, and Technology.

Bigelow Aerospace is a company that has successfully orbited two inflatable space habitats. Bigelow eventually plans to land its inflatable modules on the Moon. The company recently asked the Federal Aviation Administration’s Office of Commercial Space Transportation (FAA-AST) for a lunar “payload review” to recognize ownership by the company and other U.S. firms of extracted resources. FAA-AST reportedly is working on a response to the Bigelow lunar payload review request.

Can a company mine celestial bodies and own the resources that it extracts? Are real property rights legal under international space law? What law applies to satellite servicing and removal of space debris?

Legally, outer space is an international area that is treated in much the same way as international waters in Earth’s oceans. There are five United Nations treaties that govern space activities. The 1979 Moon Treaty is the only one that directly addresses mining and real property rights. This treaty prohibits real property rights but does say, “States Parties may in the course of scientific investigations … use mineral and other substances … in quantities appropriate for the support of their missions.” The Moon Treaty would establish an international organization to approve commercial mining on a case-by-case basis, with the potential authority to regulate and tax space mining. Only 16 nations are party to the treaty, and none is a spacefaring nation.

The 1967 Outer Space Treaty is more benign. One hundred nations are party to this treaty, including the United States and all other spacefaring nations. Article 1 of the treaty says, “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States.” Space lawyers generally agree that this freedom of use includes the right to appropriate resources, in much the same way that nations are free to remove fish from the ocean. The Moon Treaty does not explicitly say that commercial mining is legal; this implies that treaty negotiators considered commercial appropriation legal under the Outer Space Treaty. That would be consistent with the rule of international law that says any activity is legal unless it is expressly prohibited.

I believe that the resource provisions in the Moon Treaty are bad policy. Limiting resource appropriation to the amount necessary to support an individual mission means that each mission must purchase and transport its own equipment if it wishes to mine and process materials. Allowing commercial appropriation, on the other hand, would permit all sorts of specialized activities to take place without the necessity of each individual mission having to mine and process its own resources. Mining ice and processing it into hydrogen and oxygen could supply fuel depots, and enable service companies to boost dead satellites to parking orbits, refuel active satellites, recharge life-support systems, clear orbits of debris and fuel transportation in the Earth-Moon system.

The resource provisions in the Moon Treaty are based on a terrestrial frame of reference — an assumption that resources are limited. But space resources exist in vast quantities. The Moon Treaty is also based on an assumption that countries with large, expensive space programs are the only nations that will benefit from space resources. That view implicitly assumes that technology will remain static, that launch costs will not change, and that nations that don’t have launch capability will not have access to space.

I don’t agree with that view. Space Exploration Technologies Corp. has demonstrated that significantly lower launch costs are possible, and it is selling launch services to a wide variety of international customers. Other companies are developing launch vehicles, and there are already two space mining companies. This competition should bring the cost of acquiring space resources within the reach of even the poorest nations.

As we consider a new frontier with abundant resources, we must change our frame of reference. As resources on Earth become increasingly difficult and expensive to mine, and as the need for orbital debris removal becomes increasingly critical, it is clear that our laws and policies must encourage appropriation of space resources. Enacting a mining law that addresses all aspects of resource extraction is one way to encourage commercial activity.

Real property rights is another way to encourage commercial activity. Article 2 of the Outer Space Treaty says that “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.” Sovereignty is a bundle of national rights that includes, among other things, authority over territory, jurisdiction to enact and enforce laws, jurisdiction to adjudicate disputes, authority to exclude foreign nationals from areas where they might interfere with activities or threaten safety, and the authority to defend citizens and property.

All of these rights are granted by the Outer Space Treaty, except for authority over territory. Article 2 of the Treaty prohibits territorial sovereignty. Article 8 confers jurisdiction to enact and enforce laws, and to adjudicate disputes. The right to exclude foreign nationals to prevent interference and ensure safety, and the right to defend citizens and property are incorporated by reference via Article 3.

The rights of exclusion and self-defense are expressed in part through the concept of a “safety zone.” Safety zones are areas where the operator of a facility exercises control over navigation of vehicles in the vicinity of the facility, and in which it may exclude vehicles, equipment, and people to ensure the safety of the facility and its occupants. Examples of this concept are the safety zones around oil rigs on the continental shelf, and the international space station’s control zone. Space lawyers of various nationalities have written in favor of formalizing safety zones.

The United States has already adjudicated one case involving space property rights. In 2003, Gregory Nemitz registered a claim to Asteroid 433 Eros on a website maintained by the Archimedes Institute. Nemitz did not claim ownership of extracted resources; he claimed real property rights over the asteroid as whole. After he registered his claim, NASA landed the NEAR Shoemaker spacecraft on Eros, and Nemitz submitted an invoice to NASA for parking and storage fees.

NASA and the State Department denied Nemitz’s claim. In NASA’s final agency decision, Edward Frankle, then general counsel of NASA, said Nemitz’s “individual claim of appropriation of a celestial body (the asteroid 433 Eros) appears to have no foundation in law. It is unlike an individual’s claim for seabed minerals, which was considered and debated by the U.S. Congress that subsequently enacted a statute, The Deep Seabed Hard Mineral Resource Act … expressly authorizing such claims. There is no similar statute related in outer space. Accordingly, your request for a ‘parking/storage fee’ is denied.”

Nemitz then filed a lawsuit arguing that the United States had occupied his property without just compensation. The U.S. District Court for the District of Nevada granted the government’s motion to dismiss. The court said that Nemitz didn’t prove that he had any property rights, so there wasn’t any basis for compensation. Nemitz appealed to the 9th U.S. Circuit Court of Appeals, and that court affirmed the lower court’s dismissal of the case.

These courts did not certify their opinions for publication, so these cases do not establish a binding legal precedent. However, in the opinion of the former general counsel of NASA, some form of property rights may be permissible in outer space, perhaps similar to the rights granted by the Deep Seabed Hard Mineral Resource Act.

I have proposed that the United States and like-minded nations enact national legislation establishing systems of property rights that do not assert jurisdiction over territory. These property rights would encompass only the area actually used, plus a safety zone, and they would only be valid for as long as the area is occupied by people and/or facilities. In all other ways, these rights would be identical to real property rights on Earth — properties could be sold, inherited and serve as collateral for financing. Participating nations would honor other nations’ property rights pursuant to reciprocity provisions in their property statutes. This approach follows the example of the U.S. Deep Seabed Hard Minerals Resources Act and similar laws enacted by the United Kingdom, France, Germany, Japan and the Soviet Union in 1981 through 1983.

A third way to encourage commercial activity is through space salvage law. The risks posed by space debris provide considerable incentive for its removal, but the cost of such operations may be prohibitive. Such costs could be offset, however, if the entity removing the debris were to receive some or all of the economic benefit derived from that debris.

Ocean salvage operations are analogous to space salvage operations, so ocean salvage laws provide a convenient model for outer space. Nations can allow contract salvage of government-owned and private space objects on a case-by-case basis. Activity within safety zones would be permissible only pursuant to the terms of a salvage contract, and any unauthorized foreign activity within safety zones would be a violation of national sovereignty. Unidentifiable debris is not subject to national jurisdiction and would be free for appropriation or destruction by the first party to find it.

Nations can add a column to their registries of space objects wherein they identify objects that are available for contract salvage and objects that are subject to related mining and property-rights claims. I anticipate that the U.N. Office of Outer Space Affairs would cooperate and add an identical column to its international registry of space objects.

There is historical precedent for the laws that I’m proposing. Homesteading acts were a principal factor in the settlement of the Western United States. Among the most successful laws in U.S. history, these laws remained in effect for over a century, until the last homesteading act for Alaska left the United States Code in 1986. The General Mining Act of 1872 is still in effect. Basing space laws on analogous terrestrial laws would make the outcome of legal disputes more predictable, as courts could look to terrestrial law for precedents. Also, nations could implement these laws at no cost to taxpayers because the only costs are administrative and these costs could be recovered through filing and processing fees.

I therefore propose that the United States enact a “Space Pioneer Act” that would include real property rights, mining law, salvage law, safety zones and reciprocity provisions. I encourage like-minded nations to collaborate with the United States and enact similar laws. The Space Pioneer Act is something we can do right now, to provide for our future.

 

Wayne N. White Jr. is president and chief executive of SpaceBooster LLC. A longer version of this article appears on TheSpaceReview.com. For more information on the Space Pioneer Act, go to https://independent.academia.edu/WhiteWayne.