I went to this hearing, and frankly was a little disappointed by this aspect of it. The sole witness who dealt with the Asteroid Act was Joanne Gabrynowicz, Director Emerita, Journal of Space Law. I am not a space lawyer, much less a space law professor, but she took a viewpoint along the lines of “nothing should be done until there is an international consensus to clarify the Outer Space Treaty. She flat out said that the Asteroid Act was a “terrible bill” in discussion afterwards. I had discussion afterwards with David Gump (CEO, Deep Space Industries) and Dean Larson (the local Planetary Society rep and the recent author of the OpEd in the Wall Street Journal), together with Henry Herzfeld (Prof. at G. Washington) and i think it is fair to say that none of us agreed with that position.
My take, and believe that at least Dean Larson has a similar opinion, is that Asteroid Mining is clearly legal now but that there is a need for a US Law clarifying the rules for US companies (so that, e.g., two US companies got into an argument over the same minerals on the same asteroid, there would be some law to guide them). The Asteroid Act would do that, so I support it.
Prof. Gabrynowicz and Deep Space Industries CEO David Gump discussing the Asteroid Act after the meeting.
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Here, for reference, is the Treaty http://www.state.gov/www/global/arms/treaties/space1.html
Oh, and here is the text of the current draft of the Asteroid Act itself : http://www.spacepolitics.com/wp-content/uploads/2014/07/AsteroidsActHR5063.pdf
In the development of new law, it is vital that the wording be chosen carefully. A single word can change the meaning or scope of a law without intending to do so and thus leave is subject to challenge.
The Asteroid act proposes to permit ownership of space resources to one who “finds” the minerals. This make it possible for a claim by someone with a telescope to start a legal process of ownership because he “found” the asteroid and thus its minerals. The wording should be changed to “extracts” the minerals thus removing claims by simple location or identification.
So, I am reading the proposed Act (referenced above) and I see
-Any resources obtained in outer space from
an asteroid are the property of the entity that obtained such
resources, which shall be entitled to all property rights thereto,
consistent with applicable provisions of Federal law.
That “obtained” sounds reasonable to me (it, for example, allows me to sell my findings to a third party).
(b) Freedom From Harmful Interference.–As between any entities
over which the United States can exercise jurisdiction, any assertion
of superior right to execute specific commercial asteroid resource
utilization activities in outer space shall prevail if it is found to
be first in time, derived upon a reasonable basis, and in accordance
with all existing international obligations of the United States.
This is not a question of who “found” it, but what “first in time” means. To give Prof. Gabrynowicz her due, she did flag “first in time” as a problematic phrase.
I would prefer “first in time to begin resource extraction or utilization” but even that’s not sufficient.
Here is a lunar example : Suppose I want to mine the Moon for Titanium. I land on Mare Tranquillitatis, and start chewing up a zone 10 meters wide x 100 meters long each Lunar day (i.e., month), say with my bulldozers moving East. Now, can you start doing the same 100 meters in front of me? 1 km? 10 km? 1000 km? Can you do this 15 meters North of my track?
Similarly, a claim to an non-interference zone on the entirety of a 10 meter diameter asteroid is rather different (and much more reasonable) than the claim of non-interference on the entirety of the 1000 km Ceres.
Yes, “first in time” works much the same as “finds”. If company X begins mining an asteroid then abandons the operation, this may prevent others from mining that asteroid at a later date. It also does not address the issue I raised about someone with a telescope laying a claim.
The word “obtained” (or extracted) is good but it needs to be more universally used in the document.
I, personally, do not see an issue with my bulldozer working parallel, in front or behind yours on the surface of a stellar body (moon) (if you can’t compete, hang up your pick axe). If you have identified a specific “vein” or limited area of mineral content then there could be provisions to protect such. However, if that “claim” is for Titanium then a claim in the same area for Platinum should be permitted. This is precarious ground though and how does one ensure that the platinum extraction is not taking any titanium? None the less, there should be provisions for such circumstance, including protection against damage … for example: you are extracting He (trapped in the soil) and I come by and turn the soil releasing the He … you have suffered damages. But if I spit your titanium back out and keep only my platinum … that might be acceptable, kind of like how we share shipping lanes at sea.
Many complexities .. perhaps Prof. Gabrynowicz is correct in taking the stand that we are globally (politically and legally) not ready for this.
@Louis Gelinas – I totally agree, and that is a good catch. Finds is much too loose – it would open up ownership claims from everyone involved with finding a given Near Earth Asteroid, characterizing its spectrum, etc. I like “extracts,” but the lawyers should probably tussle with this some. I wish Prof. Gabrynowicz had talked about these sorts of practical matters, rather than wishing for a not-going-to-happen international convention on basic principles.
Well, I am not a lawyer, but I do not regard these as “claims” – that is, a claim of ownership (or rights) irrespective of actions, which I think we should avoid. I think that a useful metaphor is still deep sea fishing (NOT the “Law of the Sea” treaty, a rather different thing). If I go to a “fishing hole” and start to fish, I can’t stop you from following me, and fishing there too. I should, however, be able to stop you from fouling my nets (i.e,, by suing you for damages). That metaphor suggests that I only can restrict use to where I am working now, maybe with a slight operational extension (in the same way that you can’t go 5 feet in front of my fishing boat and stop and say, “well, he hit me” when I am unable to avoid you).
Now, if we restrict non-interference to the “area currently being worked” there are still ambiguities – I see no way that any law now won’t have ambiguities that will eventually have to be adjudicated. But, I think that captures the spirit of what we are trying to do under the ’67 OST best.
Ah, ok. So, basically the asteroid act would provide additional context, especially for commercial applications, but may not provide sufficient groundwork to dispel all ambiguity. As for the “first in time” issues, I think that using exclusive, time-constrained mining claims would be the way to go. http://toboldlygoforth.blogspot.com/2015/01/space-exploitation-miningclaims.html .