Getting Into the Asteroid Mining Act

Copyright © 2014 by Thomas Gangale
@ThomasGangale

I posted the following on "Gangale's International Space Law" Facebook page on 12 July, but I forgot to post it on "Out of the Blue, Into the Black." Since then, the Congressional hearing on the ASTEROIDS Act has come and gone. That a committee even held a hearing on the issue was a significant step forward, for although the consensus was that the bill was premature and needed additional work, presumably the issue remains alive and will be revisited in the next Congress. --TG

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A potential problem with HR5063, the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act, is that property rights over outer space resources removed from their natural place may not be settled international law. No such right is explicit in the 1967 Outer Space Treaty, and for the US government to assert such a right on behalf of its citizens might constitute national appropriation, which is forbidden by Article 2 of the treaty.

This is an important legal consideration, given that pursuant to the US Constitution, Article 6, Clause 2, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

On the other hand, the 1979 Moon Agreement, Article 11, paragraph 3 creates such a property right, when one straightens out its negative phrasing: "Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person." The clear inplication is that when natural resources are removed from their place, they may become property, which is derives from the Lockean legal principle of mixing soil and labor to create a property right.

The problem I see is that since the US is not party to the Moon Agreement, the property right asserted in the Federal bill cannot derive from the agreement; rather, it is being declared from a legal vacuum. The bill, were it to become law, might be challenged in Federal court on the argument that the asserted right has no basis in international law as recognized by the US, and to assert the right without such basis constitutes national appropriation, in violation of the international law that the US does recognize (the Outer Space Treaty).

The argument to uphold the Federal law might be constructed on customary international law, as evidenced by state practice. Here the problem is that only two states have ever "practiced" property rights over outer space resources removed from their natural place: the US and the USSR; therefore, this is not necessarily a compelling argument.

The best that can be said in the absence of a court ruling is that there is likely a property right in customary international law to outer space resources removed from their natural place, given that whatever objections to the practice that might have been raised by other states at that time (1969-1974) were not taken seriously.

In conclusion, were this bill to become law, it would be on firmer legal ground were the US to become party to the Moon Agreement. Alternatively, the US Senate should ratify the Solar System Treaty to begin the international process of replacing the Moon Agreement.

Thomas Gangale in Outer Space!