On Nov. 25, U.S. President Barack Obama signed historic legislation into law supporting entrepreneurs with aspirations of economic ventures beyond Earth orbit. The Space Resource Exploration and Utilization Act of 2015, part of the Commercial Space Launch Competitiveness Act (H.R. 2262), provides that U.S. companies engaging in commercial recovery of space resources are entitled to possess, own, transport, use and sell the space resources obtained. The language of the U.S. law is explicit about its intent to be consistent with U.S. obligations under the Outer Space Treaty, which has been signed by over 100 nations since its adoption in 1967 and remains the pre-eminent international agreement governing all activity in outer space.
The Outer Space Treaty did not anticipate all of the realities of our current world. Nevertheless, it remains a remarkably visionary and powerful document, with important provisions governing all activities in space.
One of those provisions is Article II, which states that outer space, including the moon and other celestial bodies, is not subject to national appropriation.
Some academics and others in the international legal community are of the opinion that Article II makes it illegal to extract space resources, but these opinions are largely independent ones and not supported by international consensus. Indeed, Article II is balanced by the preceding Article I, which states, “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” It’s Article I that provided the legal context for the U.S. and Soviet governments to peacefully undertake moon landings and return moon rocks by robots and humans in the 1960s and 1970s without international protest.
If the U.S. space resources law were about claiming territory, or an assertion of sovereignty or appropriation of “celestial land,” there would be a case for opponents to invoke Article II that prohibits such actions. But it isn’t; the U.S. law is simply about confirming and codifying the rights for U.S. private citizens/companies to peacefully explore, extract and own resources extracted, just like the U.S. and Soviet governments did back in the 1960s and 1970s, and just like China, India and other countries intend to do in the coming years through government and private missions.
The new U.S. space resources law is viewed as being helpful to commercial interests by explicitly codifying rights for the private sector that were only implicit in the 1967 Outer Space Treaty. It adds a level of certainty to the prospects, so to speak, of off-Earth resource harvesting in the eyes of investors, and provides a solid foundation for building additional supportive regulatory frameworks in the United States and elsewhere for commercial lunar and other space resource focused activities of the private sector.
Some academic members of the international space law community are expressing critical reactions to the U.S. law. But recognized bodies and organizations have weighed in more positively some time ago on the questions raised by private-sector activities in space and space resources.
In 2004, the board of directors of the International Institute of Space Law (IISL) issued a statement recognizing that private activities on the moon and other celestial bodies are permitted under the Outer Space Treaty, stating that “Article VI of the Treaty affirms that non-governmental entities, including private individuals, companies, and organizations, have the right to conduct activities in space in accordance with international space law, and subject to the authorization and continuing supervision of the appropriate State Party.”
In 2009, the IISL board further reaffirmed its consensus view that the Outer Space Treaty does not outlaw the use of space resources. It also stated that at present, international space legislation does not include detailed provisions in this regard, adding that “a specific legal regime for the exploitation of such resources should be elaborated through the United Nations, on the basis of present international space law, for the purposes of clarity and legal certainty in the near future.”
It is asserted by supporters of the U.S. legislation that the situation of a private company wanting to extract resources from a sovereign-free celestial body is similar to a commercial fishing vessel in international waters. They argue that the boat flies the flag of a country under whose laws it is bound; it is there for peaceful purposes and has a right of noninterference; and while it doesn’t own the water (land) or the fish (resources) in the water, it has a right to the ownership of the fish once extracted.
This does not mean that a gold rush for space resources lies ahead.
The new U.S. legislation provides that the president shall submit a report to Congress within 180 days specifying, among other things, ‘‘the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government.”
The United States, as a signatory to the Outer Space Treaty, is obliged to make sure that any private company it authorizes or licenses will not violate the state’s treaty obligations. These include, for instance, that the exploration and use of space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind, that they shall promote international cooperation, that the moon and other celestial bodies may be used only for exclusively peaceful purposes, that harmful contamination and interference shall be avoided, and so on. All signatories to the Outer Space Treaty, including the United States, must ensure that activities by their nationals do not violate those treaty obligations.
In addition, it may be in the best interest of the U.S. and its companies to gain international support for the confirmation of the rights of private entities expressed through the new law. Some form of international agreement on managing space resource exploration and utilization may be a means of gaining such international support, and there are positive signs that this is recognized. As an example, several U.S. companies and organizations have agreed to take part in the recently created Hague Space Resources Governance Working Group. This group, with global, multi-stakeholder participation, aims to prepare the basis for a regulatory framework for space resource activities in the next two years.
Nearly 60 years ago we began our journey as a spacefaring species. Today there are private-sector companies like Moon Express and others who seek to peacefully and responsibly explore and unlock the vast resources from outer space for the benefit of our home planet, at their own risk and cost, undertaking this goal with private investment.
These companies should be encouraged and supported by the international space law community, by acknowledging the Outer Space Treaty provisions as already inclusive, and by contributing to the creation of clarifications supporting such activity, as the U.S. has taken the lead in doing. The risk is theirs, but the rewards will become available to everyone, including the new science and knowledge that will be gained as the companies explore the moon and other celestial bodies for water and minerals. The new space resources law of the United States will help protect these activities that could one day help the economies of planet Earth and secure our future in space.
Tanja Masson-Zwaan is deputy director and an assistant professor at the International Institute of Air and Space Law at Leiden University, president of the International Institute of Space Law and a co-founder and member of the Hague Space Resources Governance Working Group. The opinions expressed in this article are her own and do not engage any of the organizations with which she is associated.
Bob Richards is a founder of the International Space University, Singularity University, Students for the Exploration and Development of Space, the Space Generation Foundation and the commercial lunar resources company Moon Express, where he serves as chief executive. He is a member of the International Institute of Space Law and the Hague Space Resources Governance Working Group.
Information about the international working group on space resource governance can be found here. The statements of the IISL can be found here, listed under the relevant years.