The new act directs the President to facilitate the commercial exploration and utilization of space resources, discourage government barriers to development of economically viable industries for space resources, and promote the right of U.S. commercial entities to explore outer space and utilize space resources. As the act states, “Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them.”
Compliance with International Law
However, several believe the act may breach international law. Two principles of the Outer Space Treaty 1967 are relevant: the principle of non-appropriation (Article II: “Outer Space is not subject to national appropriation by claim of sovereignty”) and the principle of freedom of exploration and use (Article I). The International Institute of Space Law Position Paper states that “in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty, one can conclude that the use of space resources is permitted.”
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The United States is not claiming sovereignty over the Moon or other celestial bodies. The intention is to entitle U.S. citizens and companies to own, use and sell space resources if obtained in accordance with applicable international law.
International Support
There will be provoking discussions at the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space. At present there is no international regime explicitly governing space resource mining, recovery and ownership. The U.S. act may be the catalyst for development of an international agreement or UN resolution governing these issues. International coordination is needed — perhaps The Hague Space Resources Governance Working Group could be the first step in that direction. VS
Joanne Wheeler is a partner at international law firm Bird & Bird, specialists for the space industry.
