THE U.S. EXTENDS PROPERTY RIGHTS TO THE COSMOS

Wall Street Journal on December 6, 2015, published a commentary on an important improvement of space law. It is now legal for Americans to mine an asteroid. But there a further implications. Excerpts below:

…prospects for commercial spaceflight have been skyrocketing, the law governing it had not been updated in more than a decade. That is what makes the bipartisan U.S. Commercial Space Launch Competitiveness Act, which President Obama signed Nov. 25, so important. The act is a full-scale overhaul that streamlines regulatory processes, promotes safety, and will allow commercial spaceflight companies to reach new milestones.

One provision of the law, however, has gotten most of the headlines. It says, quite simply, that if an American company retrieves minerals, metals or resources from an asteroid or other location in space, it owns them as far as the U.S. is concerned. That single sentence, which applies to all nonliving matter in the cosmos, appears to be the most sweeping legislative recognition of property rights in human history.

[John Locke has been the guiding light.] In his “Second Treatise of Government,” John Locke argued that God gave the world to humanity in common, but that each person owns himself and his labor. Therefore, when he puts labor into an object through work, he can develop a property right in the object. Similarly, the U.S. recognizes that the cosmos belongs to everyone. But under the new law resources can be retrieved from their location in space and subsequently developed. It is the work of doing this that creates the property right.

[In contrast] the 1979 Moon Agreement, an attempt by 16 non-spacefaring nations—including Australia, Mexico and Pakistan—to define the heavens as inherently public. The agreement bans private ownership of any lunar property. It requires “equitable sharing” of any developed lunar resources, and promises that the needs of developing countries “shall be given special consideration.”

The U.S. did not join the Moon Agreement. It is, however, party to the 1967 Outer Space Treaty, along with 102 other countries. This treaty states that “outer space, including the moon and other celestial bodies, shall be free for exploration and use,” but that they may not be “subject to national appropriation by claim of sovereignty.” In other words, if you build a colony on the moon, the U.S. can’t admit it as the 51st state. Space is extraterritorial limbo.

That said, because it does not prohibit other kinds of property rights the Outer Space Treaty is generally regarded as authorizing the economic use of space. Congress’s new law complies fully with the treaty, in that it covers resources “obtained” and not “in situ.” But lest any doubt arise, lawmakers included a further provision: “By the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

With a strong, clear statement that the U.S. will recognize property rights in space, Congress has given a boost to a growing industry. Planetary Resources, a company that I advise, has already launched the first in a series of technology demonstration satellites and plans to send its first prospecting probe to an asteroid by the end of the decade. Private investors can now back it and other ventures, secure that they will own whatever metals and minerals they can extract and bring home.

Property rights spur hard work and innovation—in Locke’s day, in ours and in the age of commercial spaceflight to come.

Mr. Stimers, a partner at K&L Gates LLP, is public policy counsel to Planetary Resources, as well as the Commercial Spaceflight Federation.

Comment: Mr. Stimers is correct. The Soviet Union during the Cold War unfortunately had a great influence in the United Nations. The UN legislation concerning space from that era should now be revised. The new U.S. legislation is a step in the right direction. The Loc kean principle must be introduced in earlier space treaties to protect individual property rights in cosmos.

SEC. 401. SHORT TITLE.
This title may be cited as the “Space Resource Exploration and Utilization Act of 2015”.

SEC. 402. TITLE 51 AMENDMENT.
(a) IN GENERAL.—Subtitle V is amended by adding at the end the following:

“CHAPTER 513—SPACE RESOURCE COMMERCIAL EXPLORATION AND UTILIZATION

“Sec.
“51301. Definitions.
“51302. Commercial exploration and commercial recovery.
“51303. Asteroid resource and space resource rights.
Ҥ 51301. Definitions

“In this chapter:

“(1) ASTEROID RESOURCE.—The term ‘asteroid resource’ means a space resource found on or within a single asteroid.
“(2) SPACE RESOURCE.—
“(A) IN GENERAL.—The term ‘space resource’ means an abiotic resource in situ in outer space.
“(B) INCLUSIONS.—The term ‘space resource’ includes water and minerals.

“(3) UNITED STATES CITIZEN.—The term ‘United States citizen’ has the meaning given the term ‘citizen of the United States’ in section 50902.

Ҥ 51302. Commercial exploration and commercial recovery

“(a) IN GENERAL.—The President, acting through appropriate Federal agencies, shall—
“(1) facilitate commercial exploration for and commercial recovery of space resources by United States citizens;
“(2) discourage government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration for and commercial recovery of space resources in manners consistent with the international obligations of the United States; and
“(3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.

“(b) REPORT.—Not later than 180 days after the date of enactment of this section, the President shall submit to Congress a report on commercial exploration for and commercial recovery of space resources by United States citizens that specifies—
“(1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government; and
“(2) recommendations for the allocation of responsibilities among Federal agencies for the activities described in paragraph (1).

Ҥ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”. (emphasis added here)

(b) TABLE OF CHAPTERS.—The table of chapters for title 51 is amended by adding at the end of the items for subtitle V the following:

“513. Space resource commercial exploration and utilization …….
51301”.

SEC. 403. DISCLAIMER OF EXTRATERRITORIAL SOVEREIGNTY.

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

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