It was reported recently that two US Senators introduced a bill to establish and protect property rights on asteroid resources. Leaving aside that this bill is unlikely to become a law, following the fate of similar legislative efforts in the past, and that even if it becomes a law it will not be technologically possible to implement it in the new future, it is worth examining whether such piece of legislation would conform to international space law.
The following thoughts are without prejudice to possible inadequacies of the current legal regime and the need of reform to encourage technological and economic developments in the space sector.
I. Legality of commercial asteroid mining
There has been a long-standing debate among space lawyers on the accordance asteroid mining with the Space Treaties, mainly the 1967 Outer Space Treaty.
The OST is not absolutely clear on the issue. The relevant provisions of the OST are the following:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
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.
There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.
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.
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.
Thus, (a) the use and exploration of outer space including the Moon and other celestial bodies are free (Art. I); (b) no appropriation of the outer space is permitted, including the Moon and other celestial bodies (Art. II); (c) although the Treaty is binding only to States, States are responsible for ensuring that their nationals comply with the Treaty's provisions, i.e. whatever is prohibited to a State is also prohibited to its nationals (Art. VI); and (d) the ownership of a manned space object is not affected by its presence in space (Art. VIII).
The legal debate regards mainly the interpretation of the term “appropriation”. Proponents of the legality of commercial asteroid mining fsuggest that the term “appropriation” does not include extraction of resources – it concerns only territorial claims on outer space and celestial bodies. Extraction and commercial use of resources would fall under the established general freedom of use of outer space. Hence, if no territorial claims are raised, extraction is free for everyone interested.
Nevertheless, a closer analysis of the OST contradicts such view.
Under modern international law, persons, both natural persons and legal entities, derive property rights from States. States need to have property rights themselves, recognised under international law, in order to grant such rights. Of course, in theory, every State could grant property rights on everything to its nationals. In practice, however, the effective use of a property right requires its recognition by other States as well, which occurs only if such rights abide by international law. This situation has been highlighted in cases of a State invading to the territory of another State in violation of international law - whenever the invading State has granted property rights over the territory of the invaded State, other States and international tribunals have refused to recognise (and protect) such rights.
At the same time, a “property right” confers the power on the one hand to act with an object in every possible way, including its exploitation with whatever method, on the other hand to prevent others from using the object. Thus, the act of a State extracting asteroid resources or authorizing such extraction by its nationals (under Art. VI OST) presupposes that this State has the right to do with such resources whatever it wants, i.e. that is has a property right. This is exactly an act of non-permissible appropriation. It is an act of appropriation “by any other means” in the sense of Art. II OST.
The unreasonableness of the view that extraction does not amount to appropriation is underscored, if we consider extraction through explosion. An entity could cause the explosion of a small asteroid and collect the fragments. However, the lawful destruction of an object requires ownership.
In addition, if an entity begins extracting asteroid resources convinced that it owns the extracted material, it would necessarily prohibit to other States or entities access to the mining area, where the deposits of the material lie, in order to ensure effective exploitation. This is also a form of appropriation by “any other means”.
Such prohibition of access could also prevent others from exercising their own freedom of use. Yet, the freedom to use outer space and celestial bodies should be valid for everyone. Therefore, prohibition of access to the mining area would violate Art. I (2) OST.
Besides, the exemptions to the general prohibition of appropriation were clearly established in Art. VIII (2) OST, 1st sentence, “Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” This provision aims at ensuring that all manned space objects remain property of the State or entity that sent them into outer space or constructed them therein. Admittedly, the provision may cover also mining facilities, but only the facilities as such - not the material extracted or the deposits lying underneath. Natural objects are distinguished from manned objects, which means that the exemption does not extend to extracted material. Therefore, such material is not subject to ownership claims.
II. Purposefulness of related domestic legislation
So, if commercial asteroid mining is not allowed under international law, what is the purpose of related domestic legislation? There are mainly three reasons, one obvious, one less obvious and one more practical reason.
The obvious reason is that such legislation stirs up the legal debate: new legal arguments may arise, based on new needs and new capabilities, which could pave the way for an amendment of the OST.
The less obvious reason is that through such procedures an international custom could arise. If more States, especially the powerful ones in the space sector, enact domestic legislation permitting commercial mining of celestial objects, and the other States do not react, thus tacitly accepting the new situation (acquiescence), then an international customary rule could be formed, according to which authorization of mining is allowed.
The practical reason is that such pieces of legislation serve the persons involved in other ways. Legislators who sponsor such legislative initiatives attract voters, mainly entrepreneurs. The entrepreneurs in turn attract funding for their projects by proving that their ideas are both achievable and legal, since an official legislative recognition has occurred.