ASTEROIDS Act Would Establish Space Property Rights
Schematic view of asteroid (25143) Itokawa. (Credit: ESO)
Proving that there is some vision in Congress after all, U.S. Representatives Bill Posey (R-FL) and Derek Kilmer (D-WA) have introduced introduced the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act of 2014, which “establishes and protects property rights for commercial space exploration and utilization of asteroid resources.”
Now, if they can only get a budget passed by the end of the fiscal year, Congress could demonstrate vision and basic competence at governance, something it hasn’t achieved in many years. (It’s looking like another continuing resolution for NASA.)
But, I digress.
You will note that Kilmer is from Washington state, which is home to….wait for it….Planetary Resources, the asteroid mining company backed by all those billionaires. Coincidence? I think not.
A press release from Posey follows.
Asteroids are excellent potential sources of highly valuable resources and minerals,” said Rep. Bill Posey, a Member of the House Science, Space and Technology Committee. “Our knowledge of asteroids – their number, location, and composition – has been increasing at a tremendous rate and space technology has advanced to the point where the private sector is now able to begin planning such expeditions. Our legislation will help promote private exploration and protect commercial rights as these endeavors move forward and I thank Representative Kilmer for working with me to help advance this industry.”
“We may be many years away from successfully mining an asteroid, but the research to turn this from science fiction into reality is being done today,” said Rep. Derek Kilmer, a member of the House Science, Space and Technology Committee. “Businesses in Washington state and elsewhere are investing in this opportunity, but in order to grow and create more jobs they need greater certainty. That’s why I’m excited to introduce this bill with Representative Posey so we can help the United States access new supplies of critical rare metals while serving as a launch pad for a growing industry.”
Currently, rare minerals used to manufacture a wide range of products are found in a small number of countries. This has left the United States dependent on foreign nations for these resources. The limited supply and high demand for these materials, alongside major advances in space technology and a deeper understanding of asteroids, has led a number of private sector investors to begin developing plans to identify and secure high-value minerals found on asteroids and transport them for use here on Earth.
Some rare minerals that could be found within asteroids include: platinum group metals such as platinum, osmium, iridium, ruthenium, rhodium, and palladium in addition to nickel, iron and cobalt.
Posey and Kilmer’s bill would:
- Clarify that resources mined from an asteroid are the property of the entity that obtained them.
- Ensure U.S. companies can conduct their operation without harmful interference
- Direct the President to facilitate commercial development of asteroid resources.
34 responses to “ASTEROIDS Act Would Establish Space Property Rights”
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Leave it to Congress to try to give away rights to something that they don’t own.
LOL. ROFL.
Snide, but funny.
This will never happen because it violates the Outer Space Treaty of 1967. The United States can only recognize a claim by a private company if its exerting sovereignty over the celestial body in question. The treaty prevents claims on celestial bodies and requires the signatory nations to ensure their citizens comply as well which would include private companies. It is not in the US interest to disregard the treaty because it also prevents the deployment of nuclear weapons in space. This issue has to be worked internationally through the Department of State.
My point exactly. You need a treaty.
Actually there is a treaty, the infamous Moon Treaty, but only a handful of nations have signed it, none of which are space-faring nations, because it takes too many rights away from nations.
Well, actually, the US can. And it applies to all American companies. What it will not apply to, are companies registered elsewhere.
Besides, the way that I read it, is that it is applied to companies, not to the gov. As such, the nuke portion is still in effect.
Not sure I get your drift Windbourne. Companies are considered legal entities in the U.S. and are entitled to rights and privileges under law. As corporate citizens, they are subject to the Outer Space Treaty provisions just as much as NASA is because a treaty signed by this country’s authorized representatives and ratified by Congress is just as much the law of the land as the United States Code.
My understanding of the treaty is that it applies to the GOVERNMENT ONLY, not to corporations.
And NASA is a government entity, while corporations are not.
Not necessary, you are not claiming sovereignty over the asteroid (i.e. Celestial Body), you are only stating that any rocks or ore separated from the asteroid becomes the property of those who separate it. So this is in accordance with how both Russia and the United States have handled lunar material as well as micro-meteors collected by various spacecraft. The non-interference clause would also be in accordance with the OST.
Actually private firms in theory already have these rights, but it is good that it will be spelled out in federal law.
Really? So I can drill for oil on your land and just haul off anything that I should happen to separate from your ground and that wouldn’t be me exercising mineral rights in a place where I have no legal claim?
Terry, You haven’t a clue do you. On Earth there is national sovereignty over land and Real Property law, so you would need to have the mineral rights to engage in mining. And for the record in the U.S., especially the western U.S. the government kept most of the mineral, water, oil and gas rights when it issued for patents on the land. So if those rights are not included in my patent and you bought them from the government you would have the right to do so. In fact that is an issue now with many ranchers in northern Nevada where the government auctioned off oil drilling rights on land they graze cattle on or have ownership of under the Homestead Act.
But again, Celestial Bodies are different because the OST prohibited sovereignty, so there is NO Real Property or Real Property rights. But there is Article IX of the OST which would limit you from doing anything that would be interference with my use of the area. So you better not damage my habitat while engaged in your mining activities.
Well, we could always abrogate the Outer Space Treaty. We could then establish a space cavalry to protect our bands of capitalistic space miners (they prefer to call themselves entrepreneurs) from other marauding bands of claim-jumping capitalistic space miners.
On second thought, as a taxpayer, I can’t think of one good reason why we should do that.
Terry, Why when its such a great treaty for the economic development of space. All the protections of Personal Property Law, no Real Property Law since there is no sovereignty and you may shop around for a flag of convenience for your corporation. What an ideal state of affairs.
I agree, Tonya. Trying to dance around the problem by not claiming an actual legal right to extract the ore is the same as admitting that you have no legal (thus protectable) right to mine the ore. Congress can only legislate with respect to U.S. territory and since asteroids or the Moon or comets or other planets are not U.S. territory, any law they pass regarding property or mineral rights is meaningless.
With respect to your interpretation, it is a nice theory and could work until several nations set their sights on the big asteroids which are liable to have rich deposits of minerals. At that point, disputes will arise and most likely escalate to violence either out there or back here on Earth.
Terry,
Wrong. You are confusing Real Property law with personal property law.
Ownership of land and mining leases come under Real Property law and it is prohibited by the OST since Real Property rights come from sovereignty.
But the OST has very strong provisions protecting Personal Property in space. For example, even parts of defunct spacecraft are still considered to be the property of the launching state. All this law is doing is codifying rights that ALREADY exist for the gathering of rocks and materials for Celestial Bodies. Note ALL the Russian and U,S, samples collected from the Moon are regarded as the personal property of the governments that collected them. And this is already supported by court cases in which the theft of U.S. moon rocks were pursued under the same laws that govern the theft of other government property.
Also its insane to think that disputes over asteroids will lead to violence. This isn’t the American west were anyone who buy a shovel and gold pan could start a mine and anyone who could steal a gun could terrorize those miners. It sounds like you watched one too many westerns, or space operas…
It will cost hundreds of millions of dollars to launch a asteroid mining venture. That means you are talking about a handful of firms, which if the existing mining industry is a guide, will be used to working with each other rather than fighting. If nothing else the global investment community, which will be investing their money into these firms will require it.
You are not going to risk that by starting a conflict with someone. If someone is already working on an asteroid your firm will just move on to the next one.
Counselor (at least I know that one of us is,) mining an asteroid or the moon is a Real Property issue. Picking up a few stray moon rocks or a shovelful of Martian soil may be classed as personal property. You can mine without claiming but you run all of the risks thereof. If you think that we’re too sophisticated and the buy-in too expensive for violence to occur, I would invite you to go prospecting for oil in the South China Sea.
Terry, Please do some research on the difference between Real Property and Personal Property. Anything not attached to the Earth (or a Celestial Body) is Personal Property. Once ore is scooped up it ceases to be Real Property and becomes Personal Property.
And there is not as much risk as you think. You need mining claims and mineral leases on Earth because someone generally owns the land and some nation is claiming sovereignty over it. So unless you have a lease or claim, or own the land without restrictions, the minerals belong to the land owner. That is why the prohibition on sovereignty in the OST is an advantage not a disadvantage to commercial activities in space. It means there are no land owners to deal with or challenge you when you recover the ore. Or build a space settlement. Or build a solar energy facility. And Article IX provides protection from interference with your activities.
Note that most of the problems in the South China Sea are the result of the LOS and its declaration of large Economic Zones. That is why folks are fighting over islands, because under the traditional laws of Earth its possible for a nation to declare sovereignty such islands. In space that is prohibited by the OST and that was exactly why sovereignty was prohibited.
Tom,
I apologize for getting a little testy earlier but I still think you are trying to sidestep the real vs personal property question by assuming that anything moveable is personalty. To use your line of reasoning, if you could throw a net around Jupiter and tow it away, it would be personal property. Admittedly, there are a lot of big rocks out there to mine and no place to stake a claim. For awhile, everything will be fine. At some point, however, there are going to be disputes over priority of claims and without a system to arbitrate them, the “have-nots” are going to start making it difficult for the “haves.”
Terry,
But is exactly the legal definition of Personal Property.
http://legal-dictionary.the…
“Everything that is the subject of ownership that does not come under the denomination of real property; any right or interest that an individual has in movable things.”
As for disputes, hopefully laws like this one codifying existing
precedents will establish the necessary institutions to prevent them.
And that is the problem for bigelow and others.
Lets say that they spend the money to drag an asteroid back to the moon or earth. Technically, while it is in orbit, China could just send their own companies up to grab the minerals and there is NOTHING that others can do.
I have to wonder if it is not in all of our interest to have the ability for private businesses to make claims about anything that is pulled back. Likewise, if somebody finds something of economic value, should they be allowed to claim it?
Why pull it back at all? You mine it in situ and send back the ore. This way you at least stand a chance of keeping your operation hidden from competitors. There are a couple of other advantages to in situ operations. First, you don’t drag tempting prizes into near-earth space for other parties to fight over and, second, you do not leave hazardous debris close to the planet creating a hazard to navigation and to folks on the ground.
I’m afraid any asteroid mining (or Moon mining, for that matter) is going to be a wildcat operation without government sanction or government protection.
Terry,
Why? For countries that have not signed the Moon Treaty there are no legal barriers to the recovery resources from Celestial Bodies. So why sneak around when its a legal activity.
Note that nations are required by the OST to be responsible for their nationals, which means they also have the responsibility to protect their nationals. That incidentally is the basis of the FAA AST, to regulate U.S. space launch activities and in doing so it requires the federal government to defend those firms in the international arena.
I have to wonder if the easiest solution for getting the minerals back is simply to crash it into earth. Basically, have it hit a desert or even off the shore of one of our islands.
To keep from losing massive amounts of it, simply use one of the new inflatable heat shield that NASA is testing.
From there, it becomes easy to mine it with current equipment. Regardless, this solves many issues.
Now, for using the elements in orbit or on the mine, that is obviously a different issue.
Sounds like the plot of “Tom Swift and the Captive Planetoid”.
http://www.tomswift.info/ho…
Actually no. The space law community was in agreement in the literature from the era of the OST that a Celestial Body would only be a Celestial Body if its in its natural orbit.
So if you move it from its natural orbit into an artificial one around the Earth it is no longer a Celestial Body and so becomes the personal property of the entity that moved it. Its no different than picking up a rock and bringing it to Earth orbit, its just you are taking the whole rock now.
I think we’re going to need a reference for that one since the term “Celestial Body” is not defined in the treaty itself and at the time of it’s creation, the very idea of moving a moon or asteroid was the stuff of science fiction. In the absence of contrary wording within the treaty itself or annexation of another document with a more detailed explanation, rules of statutory construction dictate that Article II still applies to both state parties and non-governmental actors (through Article VI) and you can’t claim an asteroid just by moving it.
Terry, The Proceedings of the annual conferences for Committee for Peaceful Uses of Outer Space from the 1960’s had a number of articles on the topic of what a Celestial Body was, both in regards to the OST and the UN Resolution that proceeded it. You will find them at any of the major law library. It was no mystery to the authors of the treaty which was why there was no need to define it in the treaty.
Tonya,
You are on the right track. Mining leases and claims come under real property laws and would be prohibited under the OST.
But firms are allowed to gather rocks and materials from Celestial Bodies, and once those rocks and materials are not part of the Celestial Body they become personal property and are owned by the entity gathering them.
Tonya,
Actually the existing treaties are sufficient. The key will be defining what non-interference is, which this law could help to define in terms of U.S. firms.
For those who haven’t looked it up, what I believe the pertinent articles of the Outer Space Treaty are as follows:
Article II
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.
Article VI
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.
The link to the whole treaty is here:
http://www.state.gov/t/isn/…
Terry, Yep, there is no sovereignty on Celestial Bodies. And nationals are responsible for their nationals, which is also great for commercial activities (flags of convenience anyone?). But you forgot Article IX which provides that you must not be interfering with existing activities.
This is the text of Art IX for those who haven’t read it:
Article IX
In the exploration and use of outer space, including the Moon and other
celestial bodies, States Parties to the Treaty shall be guided by the principle
of co-operation and mutual assistance and shall conduct all their activities in
outer space, including the Moon and other celestial bodies, with due regard to
the corresponding interests of all other States Parties to the Treaty. States
Parties to the Treaty shall pursue studies of outer space, including the Moon
and other celestial bodies, and conduct exploration of them so as to avoid their
harmful contamination and also adverse changes in the environment of the Earth
resulting from the introduction of extraterrestrial matter and, where necessary,
shall adopt appropriate measures for this purpose. If a State Party to the
Treaty has reason to believe that an activity or experiment planned by it or its
nationals in outer space, including the Moon and other celestial bodies, would
cause potentially harmful interference with activities of other States Parties
in the peaceful exploration and use of outer space, including the Moon and other
celestial bodies, it shall undertake appropriate international consultations
before proceeding with any such activity or experiment. A State Party to the
Treaty which has reason to believe that an activity or experiment planned by
another State Party in outer space, including the Moon and other celestial
bodies, would cause potentially harmful interference with activities in the
peaceful exploration and use of outer space, including the Moon and other
celestial bodies, may request consultation concerning the activity or
experiment.
It just depends on your interpretation. You appear to emphasize the part that admonishes State Parties to undertake consultations before taking unilateral action.
I think the first part of the article where it states that State Parties (including private businesses) …”shall conduct all their activities in
outer space, including the Moon and other celestial bodies, with due regard to
the corresponding interests of all other States Parties to the Treaty” prohibits unilateral claims to resources.
Terry,
But you are not making claims to resources, you are just codifying the existing precedents that anything separated by artificial means from a Celestial Body becomes the Personal Property of those separating it. You are also codifying existing precedents for non-interference with existing space activities. For example the existing exclusion zone around the ISS.
Be pretty hard to throw the rider. 🙂