Are Space Laws The Next Legal Frontier?

As the natural resources on Earth grow scarce, some businesses are looking outside our atmosphere. While sending miners to an asteroid may seem like the plot of a science fiction movie, it could become a reality in the foreseeable future. If this is true, then attorneys may need to start looking into space laws.

In 2012, Planetary Resources, Inc. announced that it planned to mine near-Earth asteroids for precious metals such as iron and platinum. The company attracted several high-profile funders, including Google Inc.’s Larry Page and director James Cameron. Several other companies have announced similar initiatives.

Although commercial space resource exploration is still in its infancy (no one has actually landed a manned spacecraft on an asteroid), lawmakers on Capitol Hill are currently considering legislation that would protect the property rights of U.S. companies that mine asteroid resources in outer space. The U.S. House of Representatives recently passed the Space Resource Exploration and Utilization Act of 2015 (H.R.1508), which is part of the larger SPACE Act (H.R. 2262).

“Asteroids are excellent potential sources of highly valuable resources and minerals. Space technology has advanced to the point that the private sector is now able to begin exploring and developing resources in space. Americans are willing to invest in asteroid mining, but they need legal certainty that they can keep the fruits of their labor.”

Under the proposed bill, resources mined from an asteroid would be the property of the entity that obtained them. The legislation specifically states that “[a]ny asteroid resources obtained in outer space are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law and existing international obligations.”

The proposed space law also contains provisions intended to ensure that U.S. companies can legally conduct their operations without harmful interference.

Under the legislation, U.S. commercial space resource companies or foreign companies that voluntarily submit to the law statutory framework must “avoid causing harmful interference in outer space.” The Space Resource Exploration and Utilization Act of 2015 also authorizes operators to bring civil suits against “another entity subject to United States jurisdiction causing harmful interference to its operations with respect to an asteroid resource utilization activity in outer space.”

In addition, the legislation directs the White House to facilitate commercial development of asteroid resources. It mandates that the President “promote the right of United States commercial entities to explore outer space and utilize space resources, in accordance with the existing international obligations of the United States, free from harmful interference, and to transfer or sell such resources.”

As noted by the Wall Street Journal, the proposed commercial space exploration legislation is groundbreaking and controversial, with some critics questioning whether such unilateral action is even legal under existing space law treaties. Pursuant to the Outer Space Treaty of 1967, “[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty further states that “[o]uter 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.”

Accordingly, companion legislation introduced in the U.S. Senate by Sens. Patty Murray and Marco Rubio will likely generate additional study and debate. Stay tuned for updates.