Putting things into perspective: Some comments on the US Space Resource and Utilization Act of 2015

On November 25, President Obama signed into law the Space Resource and Utilization Act of 2015. The Act recognizes property rights of US citizens on asteroid resources they have extracted. The Act has been received by both enthusiasm and scepticism regarding its effect on international space law. However, a brief analysis of the situation from a technological, legal and US-domestic perspective reveals that importance of the Act lies mainly in the domestic US politics and economy.    

1) The technological perspective

From a technical perspective, the technology needed to actually proceed to commercial mining operations is probably decades away. This is manifested by two examples: suborbital space tourism and the Rosetta mission of the European Space Agency (ESA). 

Private suborbital flights were essentially inaugurated in June 2004 after the successful completion of two flights above 100 km (62 miles) by SpaceShip One, a suborbital vehicle built by Scales Composites, in the framework of the Ansari X Prize. Scaled Composites was one of several competitors at that time. More than eleven years after, commercial flights using a vehicle based on Space Ship One have yet to begin. In the meantime, other interested companies have barely managed to build and fly a prototype to actual suborbital altitude – Jeff Bezos’ Blue Origin successful test flight on Nov. 23 is a prominent example. If a “simple” suborbital flight needs more than a decade after successfully completing two operational flights, then one can only imagine how much time will be needed to design, build, test and commercially operate the vehicles that will be sent to asteroids. Admittedly, suborbital flights will be manned, while asteroid vehicles will most likely be unmanned. However, there is still the need to design, build, test and commercially operate these vehicles, which may be unmanned, but will have to operate in deep space, not at the boundary of the atmosphere.

A small taste of the technical challenges posed by asteroid mining has been demonstrated by ESA’s Rosetta mission. Rosetta was launched in 2004, to rendezvous with an asteroid in 2015 and send a small landing vehicle (at the size of a washing machine), called Philae, on the surface of the asteroid to collect few samples therefrom – not to drill and extract commercially significant quantities of minerals. Rosetta is a one-off mission, in the sense that neither Philae nor its mother vehicle, Rosetta, will return to Earth. Nevertheless, the whole endeavour proved very challenging, especially as to landing Philae, because gravity in such small celestial bodies is extremely weak, which renders very difficult adjusting a vehicle on their surface, and many things may malfunction with crucial impact on the mission. Moreover, the whole program cost about 1 bn Euros and took more than 22 years to be completed using the scientific resources of a large, experienced and sophisticated space intergovernmental organization. It is also noteworthy that a delay in the program caused Rosetta to miss its primary comet target (comet 46P/Wirtanen) and had to be redirected to the current comet (comet 67P/Churyumov–Gerasimenko), which was a backup option. Moreover, initially the program was about bringing a sample back to Earth in cooperation with NASA; however, after NASA pulled out from this part of the project, ESA alone could not afford bringing back a sample. You can find more details on the Rosetta mission here and over there.

Consequently, landing a spacecraft on an asteroid, extracting material from it and then send such material back to Earth is an extremely demanding task.    

2) The legal perspective

From a legal perspective, the Act is less breakthrough than it appears. According to §51302(a)(1)-(3), the President undertakes to facilitate commercial exploration (mainly through appropriate regulation), discourage government barriers (thus reducing bureaucratic hurdles) and promote the right of United States citizens to engage in commercial exploration… in accordance with the international obligations of the United States (thus support the right to commercial activities during negotiations in international fora).

§51303 provides that ‘‘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, including the international obligations of the United States’’ (emphasis added). This means that the US recognizes ownership on asteroid resources under reservation of international law. Moreover, since international space law prohibits any act of national appropriation of outer space or celestial bodies (Art. II Outer Space Treaty), the Act has included a disclaimer that “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”. In strict legal terms, the above mean that the US will recognize rights on the asteroid resources, as long as such rights have been obtained according to international law. The fact that the exact meaning of current international law provisions in this regard is disputed and open to various interpretations is something not uncommon in almost all domains of international law. 

It is also noteworthy that the Act is restricted only to “asteroids”. It does not mention either the Moon, for which the special Moon Agreement is in force, albeit not ratified by the US, or other “celestial bodies” in general, which could include comets and other planets in the solar system. Therefore, this Act actually stirs up the debate on the conditions under which exploitation of space resources would be permissible under international law. It does not violate international law and it does not provide for unconditional recognition of private rights over such resources.

In the long term and depending on the reactions of other space faring nations, the Act might lead to the establishment of an international customary rule on a kind of (restricted) freedom of asteroid exploitation. However, there is a long way to run until this happens.

3) The US-domestic perspective

The practical importance of the Act can be found rather in the US political and economic context.

US economy is still recovering slowly, unemployment rates are still unsatisfactory and NASA is stripped out of funds; nonetheless, the US wishes to retain global space leadership. The only way to deal with these issues is to promote private initiative and help private companies attract investors. This way, the governmental budget remains unaffected, R&D in space technologies is encouraged and new jobs are likely to be created. Space entrepreneurs have a vision regarding space resources and they need to convince potential investors about that. The new Act offers entrepreneurs an additional argument in this regard, i.e. this vision enjoys governmental support despite the technical and legal hurdles to make it true – therefore, the investment is worth trying.

In addition, the Act is one of the rare recent examples of bipartisan cooperation. US has been suffering from political brinkmanship and the Act is an encouraging sign that the crisis could be overcome.  

Conclusion

The new Act has limited practical importance outside the US, because the technology to enable commercial exploitation of space resources is decades away. From a legal view, the Act does not affect international law, but serves rather as an incentive to reflect on current international space law, which was drafted in a much different era to serve much different needs. Nonetheless, within the US the Act facilitates investment in space technologies, which may contribute to economic recovery and job growth, and eases political tension.