G THE B IN EN V C R H E S 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 Ominor 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.