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A N 8 8 D 8 B 1 AR SINCE www. NYLJ.com Volume 254—NO. 19 WEDNesday, July 29, 2015 Outside Counsel Expert Analysis Mining Outer Space: Who Owns the Asteroids?

ver the last two years, U.S. outer space. Most relate to navigation and business and policy makers By space flight—reflecting the aspirations have focused afresh on the Timothy G. (and limits) of the era. Two, however, commercial possibilities of the Nelson are potentially relevant: Article I of the asteroids—the solar system’s OST states that “[t]he exploration and use minorO planetary objects. Most of these of outer space, including the moon and are located between Mars and Jupiter, other celestial bodies, shall be carried out while some are closer to Earth. Some The ‘Law’ of Space for the benefit and in the interests of all have large deposits of precious metals countries, irrespective of their degree of and other potentially valuable substanc- Until the Sputnik launch in the 1950s, economic or scientific development, and es.1 In the last few years, some private few steps had been taken in defining the shall be the province of all mankind.”8 operators have announced plans to mine legal rules relating to outer space. Indeed, Article II states that “[o]uter space, includ- them commercially, a concept that, until the only circumstance in which “owner- ing the moon and other celestial bodies, now, has been exclusively the realm of ship of space minerals” was relevant was is not subject to national appropriation science fiction.2 if someone was fortunate (or unfortunate) by claim of sovereignty, by means of use In apparent response to these initiatives, or occupation, or by any other means.”9 the House of Representatives recently The legal status of mining in Together, these articles mean that passed the “Space Resource Exploration space cannot be subdivided into national and Utilization Act of 2015,” H.R. 1508, part remote, extra-national areas such “colonies,” in the manner of 19th century of a broader SPACE Act of 2015, H.R. 2262. as outer space remains opaque, European powers. But there is a differ- The proposed legislation aims to assure pri- even contentious. ence between appropriation of territory vate companies of title over “[a]ny asteroid (in this colonial sense) and appropriation resources obtained in outer space”3—assum- enough to encounter a meteorite, i.e., the of mineral resources, as occurs in com- ing, of course, that they are eventually able remnants of a meteoroid (a solid body mercial mining—and OST says nothing in to get there. Although this initiative only traveling through space) that has sur- particular about the latter.10 Attempts to began in the late part of the last congres- vived collision with the Earth. One pre- fill this “gap” in the 1970s, in the form of sional session, with relatively brief hearings, ”space age” case involved a property a further treaty to regulate commercial it was sponsored by key members of the dispute over a meteorite that landed in exploitation of celestial bodies, resulted House Committee on Space, Science and Forest City, Iowa, in 1890; another dealt in open ideological confrontation. Technology.4 The bill now goes to the Senate with disputed claims to the “Willamette” In 1979, the United Nations Commit- (where it already has at least two potential meteorite situated in Oregon. Both were tee on the Peaceful Uses of Outer Space adherents, including presidential candidate decided in favor of the owner of the land finalized and circulated for signature the and Senator Marco Rubio).5 If enacted, this in which the rock was found.6 “Moon Agreement”—whose principles will be a bold, if controversial, development In 1967, there was a successful effort would have applied not only to the moon in U.S. space policy. to define the basic principles of space but also to “other celestial bodies within law. The Outer Space Treaty of 1967,7 the solar system,” including the asteroids, drafted during the “space race” and unless “specific legal norms” were imple- Timothy G. Nelson is a partner at Skadden, Arps, Slate, rapidly embraced by the community of mented regarding “any of these celestial Meagher & Flom, practicing in international litigation nations, contains a series of general rules bodies.”11 Under this treaty, all lunar min- and arbitration. intended to promote the peaceful use of ing activities would have been carried out WEDNesday, July 29, 2015

under the supervision of an international tentious. As distinguished space expert to transfer or sell such resources.”22 licensing body.12 In addition, the Moon Professor Joanne Gabrynowicz of the The bill further provides that “[a] Agreement stipulated that the moon (and University of Mississippi testified to United States commercial space resource all celestial bodies) were “the common Congress (when commenting on an ear- utilization entity,” defined as either a U.S. heritage of mankind”13—an expression lier iteration of the present asteroids operator or a foreign operator that has that, for some, reflected a socialized/ legislation), the space treaty regime “is “voluntarily submitted” to U.S. jurisdic- collectivist mind-set. unclear and contradictory regarding the tion, must “avoid causing harmful inter- Although initially supported by the appropriation of natural resources.”20 ference in outer space”23—an obligation Carter administration and signed by a few that mirrors the United States’ own obli- states, the Moon Agreement met stiff resis- U.S. Legislation Is Unveiled gation, in the OST, to safeguard against tance within the United States, with one activity by its own nationals that “would critic (a future Secretary of State) warning Inherent in the U.S. opposition to the cause potentially harmful interference it would “doom any private investment Moon Agreement and the debate over with activities of other States Parties in directed at space resource exploration.”14 Part IX of LOSC was a concern that pri- the peaceful exploration and use of outer The United States withdrew support for vate actors, and indeed state-owned space, including the Moon and other celes- the Moon Agreement, and eventually it enterprises, need to be incentivized if tial bodies.”24 garnered only 16 ratifications, with none they are to conduct the hazardous and An operator that submits to the statu- from spacefaring nations.15 capital-intensive activities associated tory framework may bring a civil action in The furor over the Moon Agreement with remote mining. One such incentive U.S. federal court against “another entity coincided with heated debate over what subject to United States jurisdiction caus- was then a draft of the U.N. Convention ing harmful interference to its operations on the Law of the Sea (LOSC). The 1978 The proposed Space Resource with respect to an asteroid resource utili- 25 draft contained a chapter, known as “Part Exploration and Utilization Act zation activity in outer space.” In such IX,” seeking to regulate the mining of the claims, a “first in time” principle will apply, deep seabed by establishing an interna- states that “[a]ny asteroid resources such that the claims of an operator will be tional “authority” to license and regulate obtained in outer space are the upheld if: (1) the operator—(A) acted in such activity. When “Part IX” found its way property of the entity that ob- accordance with all existing international into the final text of the Law of the Sea Con- tained such resources, which shall obligations of the United States; and (B) 16 vention as enacted in 1982, the Reagan be entitled to all property rights was first in time to conduct the activity. administration refused to ratify the treaty. Claims would also be upheld if “the activ- To this day, despite a deal in 1994 that thereto, consistent with applicable ity is reasonable for the exploration and reformed many aspects of Part IX (includ- provisions of Federal law and exist- utilization of asteroid resources.”26 ing provisions that had been criticized as ing international obligations.” By these mechanisms, the bill’s spon- collectivist),17 the United States still has sors evidently intend for U.S. operators not ratified the LOSC. All the same, the is legal: to guarantee that minerals are (and those of friendly nations) to achieve LOSC does state that, for licensed seabed the title of those who extract them, thus clear legal title over any resources mined operators, “[t]itle to minerals shall pass allowing them to be freely sold once they from the asteroids. upon recovery in accordance with this Con- reach market. Similar legislation was proposed (but vention”—an assurance that finds echoes In this vein, the proposed Space Resource not passed) in the 2013-2014 congressio- in the current draft asteroids legislation.18 Exploration and Utilization Act states that nal session, in the form of the “American Another “faraway” place, Antarctica, “[a]ny asteroid resources obtained in Space Technology for Exploring Resource was the subject of a proposed mining outer space are the property of the entity Opportunities In Deep Space Act,” or regime: the 1988 Convention on the Reg- that obtained such resources, which shall “ASTEROIDS” bill.27 This bill was the ulation of Antarctic Mineral Resource be entitled to all property rights thereto, subject of hearings held in September Activities, which would have permitted consistent with applicable provisions of 2014 before the House Subcommittee licensed operators to conduct mining on Federal law and existing international obli- on Space (now referenced in the House the southern polar land mass.19 Environ- gations.”21 The proposed act furthermore Committee report endorsing the current mental pressures led this treaty to be requires the Executive to “promote the legislation).28 Although several industry shelved in favor of a long-term morato- right of United States commercial entities and think tank representatives testified in rium on mineral activities in the Antarctic. to explore outer space and utilize space favor of the ASTEROIDS Bill, others were In sum, the legal status of mining in resources, in accordance with the exist- more guarded, with one private operator remote, extra-national areas such as ing international obligations of the United saying that there should have been more outer space remains opaque, even con- States, free from harmful interference, and consultation with business (as opposed WEDNesday, July 29, 2015

to scientific/academic groups).29 For her by Google Execs, James Cameron Unveiled,” 12. Id., art. 11(5) (international body shall “gov- part, Professor Gabrynowicz opined that space.com (April 23, 2012), http://www.space. ern the exploitation of the natural resources of the com/15395-asteroid-mining-planetary-resources. moon as such exploitation is about to become fea- the bill (as then drafted) needed some html (last visited July 22, 2015) (describing forma- sible”); see also id., art 11(7)(d) (calling on body further refinement30 (this now seems to tion of Planetary Resources, Inc., which “plans to to seek “equitable sharing” of resources mined have occurred, at least in part).31 She also mine near-Earth asteroids for resources such as from the moon). precious metals and water”). 13. Id., art. 11(1). warned that, while the bill’s immediate 3. H.R. 2262 §51303(a), 114th Cong. (2015) (bill 14. Agreement Governing the Activities of States impact on space law would be “modest,” text); see also Press Release, posey.house.gov, on the Moon and Other Celestial Bodies: Hearings its “political” consequences (i.e., the reac- House Passes Posey’s Bipartisan Legislation to before the Subcomm. on Science, Technology, and tion of rival spacefaring nations) would Promote Commercial Space Ventures (May 21, Space of the Senate Comm. on Commerce, Sci- 2015), available at http://posey.house.gov/news/ ence, and Transportation, 96th Cong. 2d Sess. 12, 32 be “sizable.” documentsingle.aspx?DocumentID=394240 (press 219-20 (1980) (statement of Alexander Haig, Presi- The “political” complications bear release by the bill’s sponsor, Representative Bill dent, United Technologies Corp.). reflection, especially if rival space powers Posey). This originally was a stand-alone bill, H.R. 15. Comm. on the Peaceful Uses of Outer Space, (H.R. 1508), but was folded into a broader “Space Status of International Agreements relating to ac- such as Russia, India and China were to Act” that passed the House in May 2015. tivities in outer space as at 1 January 2015 (Apr. enact rival legislation. Still, in the absence 4. See “U.S. House Passes Bill to Spur Commer- 8, 2015), http://www.unoosa.org/pdf/limited/c2/ of clear international rules, U.S. policy- cial Ventures in Space,” Wall Street Journal (May AC105_C2_2015_CRP08E.pdf. 21, 2015) (noting that the asteroids legislation 16. United Nations Convention on the Law of the Sea, makers have a somewhat plausible case was “controvers[ial]” among some House mem- Dec. 10, 1982, 1833 U.N.T.S. 397 (hereinafter LOSC). for taking unilateral action. The Senate bers because of a perceived lack of hearings and 17. Agreement relating to the implementation of is likely to consider all of these points, if concerns that the language may “violate interna- Part XI of the United Nations Convention on the tional space treaties”). The legislative history is Law of the Sea of 10 December 1982, July 28, 1994, and when it takes up the issue. discussed below. 1836 U.N.T.S. 42. To date, and despite some well pub- 5. See “Asteroid Property Rights Legislation Intro- 18. LOSC, supra note 15, Annex III, art. 1, 1833 licized (and quite awe-inspiring) private duced in Congress,” Parabolic Arc (May 10, 2015), U.N.T.S. at 528. planning initiatives, the only spacecraft http://www.parabolicarc.com/2015/05/10/asteroid- 19. Convention on the Regulation of Antarctic property-rights-legislation-introduced-congress/ Mineral Resource Activities, 27 I.L.M. 859 (1988) to reach the asteroids have been govern- (last visited July 1, 2015) (describing support by (hereinafter CRAMRA). ment-funded scientific probes. Whether Senators Patty Murray and Marco Rubio). 20. Gabrynowicz Testimony, supra note 9, at 7. and to what extent private operators can 6. See Oregon Iron Co. v. Hughes, 81 P. 572 (Or. 21. H.R. 2262 §51303(a) (emphasis added). 1905) (rejecting claims by native Americans to the 22. H.R. 2262 §51302(a)(3). “mine” them is mainly still a technological “Willamette” meteorite, a large iron-nickel mete- 23. Id. §51303(b). question (how to do it); however, recent orite located on company’s property); Goddard v. 24. OST, art. IX. advances in space and robotic technology, Winchell, 52 N.W. 1124 (Iowa 1892) (holding that a 25. H.R. 2262 §51303(c). meteoroid falling into private land belonged to the 26. Id. §51303(d). exemplified by the recent Rosetta comet owner of the land) See also Douglas G. Schmitt, “The 27. ASTEROIDS Act, H.R. 5063, 113th Cong. (2014). probe and New Horizons Pluto mission, Law and Ownership of Meteorites,” Meteorites & 28. H.R. Rep. No. 114-153 (2015) (Report of the suggest the project may become techno- Planetary Science 37 (Supp.), B8 (2002) (surveying Committee on Science, Space, and Technology logically feasible. Should this occur, then various countries’ rules on meteorite ownership). on HR 1508), https://www.congress.gov/114/crpt/ 7. Treaty on Principles Governing the Activi- hrpt153/CRPT-114hrpt153.pdf). legal incentives, as contained in the pro- ties of States in the Exploration and Use of Outer 29. See Jeff Foust, Hearing Raises Questions posed Space Resource Exploration and Space, Including the Moon and Other Celestial About Asteroid Mining Bill, SpaceNews (Sept. 10, Utilization Act, may become relevant. At Bodies, 18 U.S.T. 2410 (opened for signature Jan. 2014), http://spacenews.com/41825hearing-rais- 26, 1967) (hereinafter OST). One hundred one es-questions-about-asteroid-mining-bill/ (quoting that point, this policy area will morph from states have ratified, and a further 25 states have Sept. 9, 2014, letter from Deep Space Industries mildly significant to very significant. At signed, the OST. See Status of International Agree- “subtly critical that the hearing’s witnesses were the very least, the bill’s sponsors should ments relating to Activities in Outer Space, U.N. primarily scientists, with no representatives from Office for Outer Space Affairs, http://www.oosa. industry. ‘We suggest therefore that in the future be commended for promoting awareness unvienna.org/oosa/en/SpaceLaw/treatystatus/in- the committee reach out into those communities of this issue. dex.html (last visited July 1, 2015). more appropriate to this new realm of activity.’”). 8. OST, art. I. 30. See id. (quoting Professor Gabrynowicz). 9. Id., art. II. 31. Among other things, the text of the “Space 10. See Congressional Testimony of Joanne Irene Resource Exploration and Utilization Act,” partic- Gabrynowicz Before the Subcommittee on Space ularly its key provisions concerning title to min- of the Committee on Science, Space, and Tech- erals and “harmful interference,” makes greater ••••••••••••••••••••••••••••• nology United States House of Representatives allowance for the existing “international obliga- 1. See Susan Thomas, “Gold rush in space? As- (Sept. 10, 2014), https://science.house.gov/sites/ tions” of the United States than the prior draft teroid miners prepare, but eye water first,” Re- republicans.science.house.gov/files/documents/ ASTEROIDS Bill, which did not flesh the issue out uters, Nov. 21, 2013, http://www.reuters.com/ Gabrynowicz%20Final%20Testimony%20H.R.%20 in detail. article/2013/11/21/us-space-mining-asteroids-idUS- 5063.pdf (hereinafter Gabrynowicz Testimony). 32. Gabrynowicz Testimony, supra note 9, at 6. BRE9AK0JF20131121 (“some platinum-rich aster- 11. Agreement Governing the Activities of States oids just 500 meters across could contain more on the Moon and Other Celestial Bodies, G.A. Res. than the entire known reserves of platinum group 34/68, U.N. Doc. A/RES/34/68 (Dec. 5, 1979), re- metals. Studies based on observation and meteor- printed in 18 I.L.M. 1434 (1979) (hereinafter Moon Reprinted with permission from the July 29, 2015 edition of the NEW YORK LAW Agreement), preamble. http://www.unoosa.org/ JOURNAL © 2015 ALM Media Properties, LLC. All rights reserved. Further ites suggest space is even richer in iron ore.”). duplication without permission is prohibited. For information, contact 877-257-3382 2. See, e.g. “Asteroid Mining Venture Backed oosa/en/members/index.html. or [email protected]. # 070-07-15-39