U.S. space law versus UN Outer Space Treaty


Please consider donating to Behind the Black, by giving either a one-time contribution or a regular subscription, as outlined in the tip jar to the right. Your support will allow me to continue covering science and culture as I have for the past twenty years, independent and free from any outside influence.

In its effort to provide legal protections to private companies attempting to do asteroid mining, it appears that the U.S.’s most recent space law directly contradicts the UN Outer Space Treaty.

The United States recently passed a law that contains an article that directly concerns asteroid mining and legalizes it. This law is the Commercial Space Launch Competitiveness Act (CSLCA), which was signed into law by President Obama in 2015. The CSLCA addresses resource extraction in Article IV, and states, “A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.”

The issue here is that US law is in opposition to a UN treaty, to which the US is a signatory. The Outer Space Treaty is one of the oldest and most important agreements in the history of international space policy. Under the Outer Space Treaty, asteroid mining is illegal, since it is an appropriation of a celestial body by a State. Since the human being or organization that is doing the resource extraction is under the purview of some State, that State is responsible for the actions that are done by the nationals or organizations that are doing the mining.

This responsibility was given to the State by the sixth article of the OST and is strengthened by the Liability Convention of 1972. Since the State is responsible and liable for the actions done by their nationals, this means that the State could be interpreted as appropriating the asteroid.

I am surprised and encouraged to see two different articles about the problems of the Outer Space Treaty appear in the press less than a week after my op-ed on the very subject. I am sure there is no connection, other than the subject is increasingly topical, and others are recognizing the same things I am. Still, that these stories are appearing suggests that the chances are increasing that something will finally be done to either change or abandon the treaty.

10 comments

  • Tom Billings

    Bob, this article was, frankly, as worthless as far too many I have read on the subject. The author assumes that metals will be brought back to Earth for sale, for god’s sake! It is utterly one-sided in the argument that space-mining should be treated like fishing, which it never mentions directly.

    “The best metaphor to use for how the CSLCA approves space resource extraction is this: the private companies are going out into the wilds to find a mine, and then extracting gold from the mine.”

    No! That is *not* the best metaphor, or analogy, or basis for discussion!

    It may be what is used, but it sounds far too much like the arguments for the “Law of the Sea” Treaty for me to give it credence. In fact, I find that many who have this attitude toward mining in Space would be more than willing to put *all* fishing under the restraints of one State or another.

    This is nothing more than the continual demand for the spread of the power of the State, expressed in a different fashion.

  • Tom Billings: I agree that this article is quite weak. What struck me however is the timing, coming only days after my op-ed on the very same subject. The article seemed remarkably educated about the specific problem of the Outer Space Treaty and the limitations it places on sovereignty and property rights, in exactly the same manner that I discussed in my op-ed. Since it seems like years since I have seen any articles in the mainstream press discussing these issues, I can’t help but wonder if it was a response to what I wrote.

    Similarly, the actions of Luxembourg’s legislature struck me in much the same way. Up until now, it appears that their new proposed law was going to breeze its way into law. Suddenly, mere days after my op-ed, they are suggesting changing the UN treaty! No one in any government has made that suggestion ever, since the treaty was passed in the 1960s.

    By the way, I want to complement you for your valiant efforts in the comments thread of my op-ed at The Federalist. You were clearly dealing with people who don’t know a lot about this subject, and did as good a job as possible to try to educate them.

  • Laurie

    The question is, will I be able to eat kosher food on an asteroid after a hard day’s night mining it.

  • wodun

    Since the human being or organization that is doing the resource extraction is under the purview of some State

    That doesn’t mean an individual or organization is the state though.

  • Tom Billings

    A little more detail on the Luxembourgers’ maneuverings is now available.

    It seems that a portion of the old oligarchy objects to *any* uncertainty in the legal status of a program for the Duchy.

    A short article in SpaceNews led me to:

    http://delano.lu/d/detail/news/doubts-over-space-mining-legal-status/142567

    This “Council of State” is not the legislature, but as this wikipedia article makes clear, seems to be lately massively appointed at the behest of the heads of political parties within the Duchy.

    https://en.wikipedia.org/wiki/Council_of_State_of_Luxembourg

    It seems this has not stopped the Economics Minister, but has pushed revisions:

    “Schneider has confirmed his objective is to ask for a revision of the question of property in the Outer Space Treaty. He wants the UN to create a legal framework which would allow companies worldwide to act in this domain. Schneider is now meant to revise his bill in order to address the council’s concerns.”

    We must wait upon events.

  • Tom Billings: I think Luxembourg here is doing us a good turn. It is perfectly reasonable for them to demand certainty of ownership when it comes to large investments. The Outer Space Treaty specifically prevents this. Their demand that it be revised is a very good development, as it might bring other nations to the table who want the same thing (such as the U.S.) but have not yet felt compelled to act.

    All in all, a very hopeful development.

  • ken anthony

    An aggressive alien race could clarify the property rights issue very quickly. So why can’t we simply pretend they exist and move forward from there?

    The reason there is no movement is “how to implement the graft” hasn’t been ironed out yet.

  • Edward

    ken anthony,
    Nobel Prize winner Paul Krugman seriously proposed getting out of a depression by faking a space alien attack, yet no one was willing to look that stupid (except for Krugman).
    https://www.youtube.com/watch?v=CgAUW_zcN9k (2 minutes)

    Since there was not enough concern about the terrible depression to make fake space aliens, I don’t think that there is enough concern over the Space Treaty to do so. Instead, I think that we will see, over the next few years, that private commercial companies will provide more services than governments have done in the previous six decades of their own operations.

    Free market capitalism and private property will do as much better in space as it has on Earth over governmental, centrally-controlled economic systems.

  • ken anthony

    You’ve cut me to the quick Edward! Thought experiments are still a sound method for reasoning. Krugman wasn’t using it for that. He was using it for the typical leftist agenda of truth being what he says it is.

    My point is very plain. Lawyers like to wrap things up in jargon when property rights are fundamentally simple. A person owns what others can’t take away. There is very little more to it. Especially when we are talking about a situation where denial of those rights would take more than a bunch of lawyers in some courtroom coming to an agreement that the property holder can easily ignore.

    The sad thing to me is not just denial of reality, but doing so takes away the easiest method of funding a hugely expensive colonization opportunity. Just because some think pet rocks is a dumb idea (me included) doesn’t take anything away from what works (giving free people the chance to invest in dumb ideas… which can result in moving forward where we otherwise will not.)

    Many would (and do) argue that private property rights is a dumb idea. A dumb idea that has fueled economic growth every where it’s tried.

  • Edward

    ken anthony wrote: “A person owns what others can’t take away.”

    That is a good way to explain property rights. If the government can take it away from us (e.g. taxes or eminent domain), then was it really property owned by the person or does the government consider it to be theirs, and that they are letting you hold it for a while?

    The reason that property rights fuel economic growth everywhere free market capitalism is tried is because it takes advantage of a flaw in human nature: self interest. When we are allowed to keep what we earn, even earning it is by selling rocks as pets (my pet rock came from the back yard, but he was never house broken, unlike the pet rocks that came from that guy who became a millionaire from the idea), then we are encouraged to try new things, no matter how stupid they may seem; sometimes there is a million-dollar market for the stupidest things, such as pet rock shampoo (yes, someone came up with that product, too).
    http://www.wikihow.com/Take-Care-of-Multiple-Pet-Rocks

    We do not always see how some ideas will do well, but each of us doesn’t have to see it. Someone with an idea need only sell a little of it to each of a million customers in order to make his million dollars and does not have to sell to everyone. This allows a wacky idea to work for the innovator who can sell to people who appreciate wacky.

    So, how about we all get together and sell pet Moon-rocks from our own sample-return mission to the Moon? I bet there’s still a multi-million dollar market for Moon rocks, especially from the permanently shadowed areas of certain polar craters.

Leave a Reply

Your email address will not be published. Required fields are marked *