Title IV of the U.S. Commercial Space Launch Competitiveness Act of 2015: A Critical Step Forward in Facilitating the Development of a Viable Space Infrastructure

Introduction

We are living in the most exciting yet uncertain time in the history of the international commercial space industry, in particular for the young companies involved in “non-traditional” space activities. Since the turn of the century, disruptive technological advancements have opened the opportunity for private entities to begin playing a larger role in space activities, which have traditionally been the realm of government agencies or defense-related entities. Successful entrepreneurs have leveraged their business acumen and combined their intense passion for space to create much-needed launching companies such as SpaceX and Blue Origin to increase launch capacity and advance rocket reusability, which have put pressure on traditional launching companies such as ULA and Arianespace to innovate. Rapid technological advancements in the development of small satellites and their accompanying subsystems have paved the way for young companies to develop and launch a number of spacecraft in the hope of developing autonomous smallsat constellations to provide remote sensing and data services throughout the world. This palatable excitement in the commercial space industry is not merely about the readily available and advancing technologies, but about the impact such technological changes are having in the creation of private entities focused on non-traditional space activities, such as on-orbit servicing, debris mitigation, private space stations, and space resource utilization.

The Need for Regulatory Clarity

Yet, with all the technological opportunities increasing the odds of successful missions for such young non-traditional space companies, uncertainties abound in both regulatory queries and a constant need for capital formation. In particular, the nascent space resource utilization industry, primarily based in the United States, has faced an uphill battle for attracting private financing. It should be fairly obvious that investors do not exactly throw open checkbooks to companies having audacious goals such as mining asteroids, even though space resource utilization is the critical and primary key to providing the material to enable and empower humanity to sustainably survive and thrive beyond Earth's orbit. The nascent space resource utilization industry, whose number can be counted on one hand, had difficulties attracting capital not only because of the initial “giggle factor” but also because investors wanted regulatory certainty that would protect their investment. Before the passage of Title IV of the U.S. Commercial Space Launch Competitiveness Act of 2015, ¹ the regulatory certainty did not exist anywhere.

Title IV of the U.S. Commercial Space Launch Competitiveness Act (“Title IV”) helps to provide the space industry a minimum threshold of assurance that the use of space resources is legal. ² Before the Act, there was a strong argument for the legality of owning space resources. However, the argument was less likely to make for a stable industry than is the more specific language in U.S. legislation. ³ Instead of having to infer the legality under U.S. law from an argument that owning extracted resources is consistent with United States treaty obligations and the U.S. government has not forbidden it, an investor in a U.S. space resource utilization company can now simply look at the relevant U.S. law and see that the U.S. government both believes that ownership of extracted resources is legal under international law and intends to recognize and protect such ownership rights.

The Distinction Between Obtained Resources and Celestial Bodies

The brief argument ⁴ for the legality of owning resources that have been removed from outer space or from celestial bodies is that states may do what does not violate international law. ⁵ The United States, therefore, can recognize ownership rights in extracted resources because Article 2 of the Outer Space Treaty ⁶ bans only appropriation of space or celestial bodies; it does not forbid appropriation of things that have been obtained from celestial bodies. ⁷ Analogous principles may be found in maritime law, where the high sea itself may not be appropriated, but fish that have been taken out of the ocean by a vessel in international waters belong to whoever removes them. ⁸ This applies regardless of whether the fishing is conducted by a private vessel under the jurisdiction of a state or by a state-owned vessel. ⁹ In space, the connection between private spacecraft and state responsibility is closer than in maritime law. ¹⁰ The Outer Space Treaty's Article 6 appears to broadly assimilate the legal identity of private space actors to that of the launching state. ¹¹ Some authors ¹² have supposed that the U.S. government is attempting to give American companies rights to do things forbidden to governments. However, this is not the case. The U.S. law's basis is in a distinction between space and celestial bodies on the one hand (which Article 2 of the Outer Space Treaty declares are not subject to appropriation) and extracted resources on the other. ¹³

The U.s. Legal and Regulatory Environment

In the case of the United States, given that in the United States commercial activities are primarily undertaken by private companies, having federal law specifically address private rights to resources obtained from space serves to implement the United States' responsibilities under Article 6 of the Outer Space Treaty. In the United States, regulation is currently done at the level of licensing launching and reentry through the FAA, ¹⁴ but there is currently no on-orbit authority in the U.S. law for space missions (although private entities may make a payload review request for postlaunch operations to get the U.S. government's opinion as to legality of the proposed activity). ¹⁵ Title IV does not completely resolve this issue and subsequent legislation will need to specify which U.S. agency is responsible for regulating activities in space. However, it does represent a partial implementation of the U.S. responsibilities to oversee private activities in space.

Although Title IV is intentionally less detailed than the earlier ASTEROIDS Act ¹⁶ legislation, Title IV is a dramatic improvement over its legislative predecessor. The ASTEROIDS Act was rife with problematic language and ambiguities; certain portions of the ASTEROIDS Act were felt by many to be too broad or too vague. ¹⁷ After lengthy legal analysis, discussions, and debates, which included the involvement of the sharpest legal minds in the U.S. Congress and applicable federal agencies, the U.S. Congress gutted the ASTEROIDs Act and went back to work on legislative language that resulted in the final version of Title IV. Title IV is more narrowly focused on the general question of the legality of extracting space resources and does not take a detailed position on legal issues for which, at this very beginning of the nascent industry's history, it would be less easy to build consensus.

Practice, Incentives, and Treaties

It is important to keep in mind that no private entity has yet conducted any activity, scientific or commercial, on an asteroid. The Japanese government has taken samples from an asteroid (landing on an asteroid in 2005 with the Hayabusa spacecraft, and returning samples to earth in 2015), ¹⁸ but as of right now, no private company has done the same. At this stage, the industry needs a general framework for the legality of its operations; much of the hardware required for asteroid mining remains to be built, and it would likely prove difficult for regulators to anticipate many of the specific issues that are likely to arise. Thus, it would be premature to attempt to develop various standards of care when much of the technology has not been proven. Instead, the organic development of the industry will help to give regulators more information regarding what coordination and technological issues need to be resolved.

Some have argued that the space resource utilization industry should instead wait for the development and passage of an international space resource utilization treaty rather than rely on national space legislation. Private companies, however, are already developing space resource utilization technology and potential investors need reassurance that the regulatory environment is safe enough for them to put their money at risk. It is certainly no secret that international treaties take time to draft and obtain consensus, and large treaties have been relatively unsuccessful at getting ratified in the last few decades. ¹⁹ No space treaty has achieved broad acceptance since the 1970s, and it does not appear that current geopolitical conditions are incentivizing states to accept a new treaty. In the case of the Outer Space Treaty, there was concern about nuclear conflict, which likely helped to make states willing to negotiate. In the case of the Liability Convention, ²⁰ the space powers were incentivized to agree to a strict liability regime to get non-spacefaring powers to adhere to the Rescue and Return Agreement ²¹ and the Outer Space Treaty. ²² The non-spacefaring powers had an incentive to agree to the Rescue and Return Agreement and Outer Space Treaty to get what they wanted in the Liability Convention. ²³ These are not the only issues that played a part in those treaties, but may help to illustrate the reasoning behind why states may feel less of a need to compromise and agree to a treaty on space resource utilization today. ²⁴

In addition, it appears that waiting for a big multilateral treaty before implementing national legislation on space resource utilization might delay the circumstances that would help create a productive and broadly accepted treaty. That is, once the benefits of using space resources are clearer to the general public, there may be more of an incentive to consciously formulate a new treaty. In the meantime, states might make use of bilateral agreements as a way to find solutions to any issues of harmful interference between space activities that are found to be involved in the use of space resources. In this vein, it is important to note that the physical characteristics of celestial bodies are widely divergent, as are the various young space resource utilization technologies. So, an activity might cause (for example) a disruptive amount of dust to disperse onto a neighboring space activity when conducted on the moon, ²⁵ but have no harmful effect as between two space actors operating at the same distance on a celestial body with different physical characteristics. ²⁶ These differences will not always be easy to anticipate in advance, especially when mining technology has not been tested on any extraterrestrial body; a premature multilateral treaty could create a system that is not broadly suited for the physical environments we will encounter. Only numerous missions and trial and error can sensibly allow time to accumulate the raw data that are critically needed to develop consciously drafted regulatory frameworks for space resource utilization. We are certainly not there yet, especially since not even as much as a gram of dust has been scrapped off a moon, asteroid, or extraterrestrial planet by any commercial entity.

There had been national space legislation on the part of the United States as well as national action in space on the part of the Soviet Union, the United States, and France before the Outer Space Treaty was ratified; so developing national space resource utilization legislation before enacting a new multilateral treaty has some precedent within space law itself. Likewise, in other areas of law, like the continental shelf and exclusive economic zone, national legislation (as well as some bilateral agreements ²⁷ ) preceded the standardization of this by a larger treaty.

Positive Externalities of Space Resources Legislation and the Influence of Title Iv On Legal Developments in Other Countries

Furthermore, it must be kept in mind that a multilateral treaty is not the only way to benefit all of humanity. Space exploration has positive externalities that benefit even nonspace actors. Many of the benefits flowing from mining for resources in space will serve to make space exploration more affordable. As most of the costs of space exploration are a result of the expensive launch prices, mining in space serves to reduce the cost of space operations by allowing missions to be launched without having to lift all the supplies they need out of Earth's gravity well. Once space resources technology allows the cost of operations in space to decrease, this will facilitate space exploration fitting within the budgets of many more countries than it does at present, especially those of less developed countries. Furthermore, the ability to build structures in space from space resources could potentially allow a range of uses of space that are at present uneconomical.

In terms of the legal environment, clarity with regard to space resources will also benefit companies that are not primarily concerned with space resource utilization. For example, future space companies might wish to use local resources to help enlarge or supply structures that they place on the moon; it is best to have the legal status of installations built using in situ resources clear. ²⁸ Furthermore, having a major space power like the United States announce its support for ownership over obtained resources does not just help U.S. companies. This law helps send a signal that the United States supports ownership of obtained resources not just for itself but also for other countries. ²⁹ As far as the U.S. law itself goes, even in the absence of another agreement, the doctrine of estoppel ³⁰ provides a basis for saying that the United States is limiting its ability to claim that other states are violating international law when they commence their own space resource efforts in the future. More broadly, under accepted rules of treaty interpretation, “subsequent practice in the application of the treaty, which establishes the agreement of the parties regarding its interpretation,” ³¹ shall be taken into account when interpreting a treaty. ³² Thus, if the U.S. legislation is followed by other states (as Luxembourg and the United Arab Emirates have signaled that they are doing ³³ ), that can help define how terms in the Outer Space Treaty such as “exploration and use” are interpreted. (Subsequent to the initial composition of this article, Luxembourg enacted a space resources law. ³⁴ ) After the U.S. space resources legislation was enacted, the International Institute of Space Law issued a statement indicating that the legal status of the use of space resources was not necessarily the same as that of celestial bodies themselves, and indicated that whether other countries followed the United States' example remained to be seen. ³⁵ We are seeing that other countries are, in fact, following the example of the U.S. law and this law is prompting overt support for the ownership of resources that have been obtained from space. Furthermore, these policies do not represent a completely novel development—the U.N. General Assembly itself has given support for commercial activity in space ³⁶ —this represents an extension of that declaration.

At the May 2016 UNCOPOUS meeting, representatives of several states, including Russia, raised concerns about Title IV:

The Russian delegate went on to raise concerns about unilateral action and discuss, among other things, the Moon Agreement ³⁸ (which Russia has not signed) as a reason for questioning the legitimacy of Title IV. We should be cautious about how much we infer from the Russian delegate's argument, given that Russia's own law is in some respects more expansive than the U.S. law—it includes an assertion of jurisdiction over non-Russians in the vicinity of Russian spacecraft:

Thus, it seems likely that the complaints raised at UNCOPOUS do not embody a firm Russian position on the matter, but rather reflect the current geopolitical tensions between Russia and the United States. ⁴⁰

Concern has been expressed that in the absence of an international regime to oversee resource use, there will be a “race” for resources in space that might bring “no long-term benefit for either party.” ⁴¹ However, even in the absence of a new multilateral treaty, this is not a zero-sum game. If the United States is joined by other countries in creating national legislation, this has the potential to make it easier for people of many different nationalities to invest in outer space. Furthermore, if multiple countries are making use of space resources to support their space operations, this has the potential to hasten the development of a diversified economy in space, which will decrease the cost of space exploration for all parties, and allow the participation of new actors. More importantly, the involvement of multiple countries in space resource utilization will further hasten the development of best practices and standards of care that are not merely theorized and prematurely developed on an academic level, but are derived from actual experience and practice.

Space Resources Are Not a Zero-Sum Game

For many individuals, the historical memory of colonialism may still serve to make the prospect of expanding into outer space less exhilarating. It is true that the European age of discovery often proved to be a zero-sum game for many of the peoples who encountered Western explorers. The movement of one group of people into new territory often meant disease, conquest, or displacement for indigenous peoples. However, space exploration and space resource utilization avoid many of these issues ⁴² ; mining in space (on lifeless bodies) adds to the total stock of resources available to all of humanity. The use of space resources will expand the area in which humanity can act. Although the nascent space resource utilization industry is primarily centered in the United States, the growing interest in space resources is spreading throughout the world, and as the technologies continue to develop and prove successful, the industry will continue to spread worldwide and benefit people of a variety of nationalities. This is an exciting area of new human endeavor.

Space mining has the potential to create a host of new industries with positive externalities. The cost of bringing things to and from Earth means that most resources obtained in space will be used in space. ⁴³ Even so, proposed uses could directly help Earth, nearer term through refueling geosynchronous satellites, and, eventually, some writers suggest it might help make satellite-based solar power economical. ⁴⁴ Space mining could support a range of scientific space operations, from resupplying exploratory missions to providing cheaper resources to support a radio telescope on the far side of the moon. The ability to mine asteroids will help increase understanding of their physical characteristics and facilitate diverting ones that pose an unacceptable risk to Earth.

The more of a success space mining is, the greater the variety of space activities it can support, and the greater the variety of people who will be able to afford to participate. We can anticipate a future in which nearly every country has at least some nationals who are working in the space resources industry, and in which every country benefits.