The Truth Behind Title IV of the Commercial Space Launch Competitiveness Act of 2015

by Sagi Kfir, General Counsel

People often ask, “Is asteroid mining legal, especially considering the Outer Space Treaty of 1967?” The simple answer is: Yes.

In November 2015, a historic step was taken toward opening up the reaches of the solar system and beyond for humanity when President Obama signed the Commercial Space Launch Competitiveness Act. Under Title IV of the law, and for the first time in history, U.S. citizens including commercial entities are now entitled the explicit right to own resources extracted from space, such as water ice from asteroids. These rights, in accordance with international law and treaties, were set to encourage the development of a space resource industry that will take the necessary risks to find, extract, and use space resources in the larger effort of developing a space economy and infrastructure as humanity expands its reach into the solar system.

The requirements under Title IV take the legal steps to lay down the initial framework for exploring and utilizing space resources, including asteroids. The law requires the U.S. president to facilitate commercial exploration for and recovery of space resources, discourage government barriers to the development in the U.S. of space resource utilization industry, and promote the right of U.S. citizens to engage in commercial exploration for and recovery of space resources free from harmful interference. It also requires the president to send a report to congress by the summer of 2016 that specifies the authorities to meet international obligations and recommend the allocation of responsibilities among federal agencies to meet these obligations. Most importantly, it grants the right of U.S. citizens to explore, use, and own the materials extracted from asteroids and other space resources.

Sagi Kfir, DSI General Counsel

Unfortunately, there has been some misunderstanding in the international community regarding the legality of Title IV. It is abundantly clear that no international space law or treaty explicitly prohibits the commercial use and extraction of space resources. The rights to freely and unilaterally access, explore, and use outer space, including the Moon and other celestial bodies, is the foundational and principal set of rights codified by the Outer Space Treaty of 1967, which still serves today as the “Magna Carta” of international space law. The word “use” is in the very title of the treaty, is set forth in the very first article of the treaty, and is one of the main rationales of the drafting the treaty in the first place. Title IV was drafted to further clarify such rights, on a national level, for U.S. citizens to explore and use asteroids and other space resources. In fact, it is indisputable under international law that any nation, which is a party to the Outer Space Treaty, has the right as a sovereign nation to interpret and implement its treaty rights on a national level. Establishing a domestic regulatory framework, such as Title IV, is not only the right of each nation that is a party to the treaty, but is actually required in order to comply with international law.

TitleIV_PullQuoteMany in the international community are also unaware of the tireless efforts, discussions, legal reviews, and legislative revisions that Congress and the U.S. administration took to ensure Title IV’s compliance with international law and the Outer Space Treaty. After rightly gutting the legally troublesome wording in the initial asteroid mining legislation known as the ASTEROIDS Act, the U.S. Congress and the administration went back to the drawing board to develop new legislative language that complied with international law and was technologically agnostic to the nascent U.S. space resource utilization industry. In the final version, Title IV mandates — not once but in four separate sections — the requirement that space resource utilization conducted by U.S. citizens comply with international obligations.

In fact, the new law explicitly acknowledges the continuing validity and importance of Article II of the Outer Space Treaty, and declares to the world community that the U.S. does not assert sovereignty, exclusive rights, or ownership of any celestial body. Under Title IV, U.S. citizens have the right to retain the extracted material from asteroids and celestial bodies but not the right to own or keep the entire asteroid or celestial body. Much like fishing trawlers going to sea, the fishermen have the right to keep the fish that they catch, but have no ownership rights to the sea itself. Similarly, the U.S. space resource utilization industry is not claiming any ownership or right to the asteroid or space resource itself, just the right to retain the material extracted from such resources. Even the world’s leading space law experts at the highly venerated, Europe-based international space law and policy organization, the International Institute of Space Law, released a position paper only one month after the passage of Title IV which explicitly acknowledged that the use of space resources is permitted.

An unfortunate myth has been circulating that Title IV was drafted by the U.S. administration as a step towards American domination and hegemony in space. Not only is the myth factually incorrect, but the polar opposite happens to be true. The language in Title IV was drafted not just for regulatory clarity for our industry in the U.S., but also to serve as a catalyst to encourage other nations to develop similar legislation, which will hopefully allow for the development of an international space resource utilization industry.

For far too long the topic of space resource utilization was strictly confined to the arena of legal and engineering academic journals and conferences. With the passage of Title IV, space resource utilization has taken the first step towards realization, not just in the U.S., but in other nations as well. In fact, within less than five months after the passage of CSLCA, forward thinking nations such as Luxembourg and the United Arab Emirates openly expressed their intent and desire to develop their own national space resource utilization legal regime in order to foster the growth of an indigenous commercial space resource utilization industry. Encouragingly the list of other interested nations continues to grow.

The birth and passage of the first national space resource utilization legal regime is the first step toward further international cooperation in space and it will ultimately benefit all mankind. With similar legislation being drafted in other nations, bilateral and multilateral agreements will develop between like-minded nations that see the economic, environmental, and social importance that space resource utilization will bring to their respective countries.

Space resource utilization is not primarily about mining precious metals in space and bringing them back to Earth. Rather, space resources such as water ice, metals, regolith, and silicates will be the raw material used to develop structures in space that will enable humanity to reach farther into the depths of our solar system and beyond. Such structures include the development of large space solar power satellites that will provide clean energy throughout the world and allow humanity to wean itself off fossil fuels that are destroying the Earth’s environment. The development of an international space resource utilization industry will also foster economic growth throughout the world and will develop advanced technologies yet unknown to benefit all mankind. And the same technologies employed for exploring and using asteroid resources will also be used for planetary protection to ward off any deadly Earth-bound asteroid.

So, in answering the question, “Is asteroid mining legal?”, I’d say: Not only is it legal, it’s imperative. Just ask the dinosaurs.

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