The Legality of Mining Celestial Bodies

On 25 November 2015, U.S. President Barack Obama signed into law H.R. 2262, the U.S. Commercial Space Launch Competitiveness Act of 2015. Section 51303 provides: “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.” The new law set off a flurry of reportage in the online popular media. The Canadian Broadcasting Corporation reported of Ram Jakhu, a law professor at the Institute for Air and Space Law at McGill University: “He said the 1967 Outer Space Treaty, signed by the U.S. and other countries, including Canada, makes it clear that the surfaces and contents of asteroids and other celestial bodies are protected from commercial harvesting.” Gbenga Oduntan, a law professor at the University of Kent, wrote of H.R. 2262: “It goes against a number of treaties and international customary law which already apply to the entire Universe. “The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbridled commercial exploitation of outer-space resources. These principles are found in agreements including the Outer Space Treaty of 1967 and the Moon Agreement of 1979. “…[T]he Moon Agreement (1979) has in effect forbidden states to conduct commercial mining on planets and asteroids until there is an international regime for such exploitation. While the US has refused to sign up to this, it is binding as customary international law.” Granted, the online popular media is not the best venue for legal argumentation. It can be asserted plausibly, however, that any declaration to the online popular media that the recent act does not violate international law would be received as something less than sensational. The present article traces backward through time a consistent chain of statements contained in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement); the 1967 Treaty on Principles Governing the Activities of States in the Exploration of Outer Space, Including the Moon and other Celestial Bodies (Outer Space Treaty); the U.S. Senate hearings on the aforesaid treaty; and United Nations General Assembly Resolutions 1962 (XVIII) and 1721 (XVI), together with the travaux préparatoires of the aforesaid U.N. treaties and resolutions, to show the following: • There is no moratorium on the mining of celestial bodies in international law. • Historically in international space law, the term “national appropriation” has meant an effortless and immoderate taking beyond present necessity, whether by a State directly or through the agency of a nongovernmental entity subject to its jurisdiction, and the prohibition of “national appropriation” does not in any way derogate the natural law principle of creating property through the mixing of labor and soil. • The Committee on the Peaceful Uses of Outer Space (COPUOS) recognized as early as 1959 that exploration, settlement and exploitation of natural resources raised distinguishable problems, and that only settlement and exploitation raised serious problems of possible claims to sovereignty. As these did not appear likely in the near future, issues pertaining to settlement and exploitation were removed from the COPUOS working agenda until revived in the context of work on the Moon Agreement in 1969. Since these issues were deliberately excluded from consideration between 1959 and 1969, no provision of the aforesaid U.N. resolutions or of the Outer Space Treaty, including the “national appropriation” principle expressed therein, pertains to the settlement or exploitation of celestial bodies.