There’s some over-the-top commentary in the space press on the new “commercial space” bill just signed into law (The U.S. Commercial Space Launch Competitiveness Act, H.R. 2262). In particular, the law is touted as “… the single greatest recognition of property rights in history” by Eric Anderson, Co-Founder and Co-Chairman of Planetary Resources Inc. , a company created to mine near-Earth asteroids. Now, thanks to this Congress and President, the unimaginable wealth of the universe has been dropped into our laps.
The actual section of the bill dealing with space resources (Title IV) is quite short and somewhat perfunctory. It defines a space resource (and that term is used: space resources not “asteroid” resources) as “an abiotic (non-biological) resource in situ in outer space.” Thus, the materials of planetary-sized objects (other than the Earth) are apparently covered, including lunar polar ice. The bill prescribes that the President shall “facilitate,” “discourage the creation of barriers to,” and “promote” commerce in-space resources, all very commendable (though vague) but also all acting under “appropriate Federal agencies.” So, if anyone thought that this bill would suddenly unleash a new gold rush, it will be one taken under careful bureaucratic supervision.
The best part of the bill comes in Section 51303, which essentially states that what you harvest from space, you own, along with the appropriate rights to keep, use, sell or trade it to any entity. This is a good thing, but arguably, we had this right already. Or did we? Was it arguable previously that we did not have this right, and that now, with a stroke of the pen, we do have it? What has changed?
A big sticking point remaining is that while the advent of this law may make New Space entrepreneurs feel better, it does not resolve the questionable international legal status of space resource utilization. The United States is not a signatory to the infamous 1979 Moon Treaty, which places lunar resources (and by extension, asteroid resources) under international “community” ownership. The Senate refused to ratify the Moon Treaty, but we are signatories to the 1967 Outer Space Treaty, which bars any territorial claim in space by any nation. Proponents of space resource utilization have long surmised that private claims on resources are not forbidden by this treaty; but individuals are subject to the laws of nations of which they are citizens, so a space miner could find himself in possession of a small asteroid, while at the same time have his terrestrial assets seized through some legal process or claim.
We have gotten along fine without this law for the last 50 years, largely because no commercial entity is anywhere close to actually accessing and using an off-Earth resource. Now that we’re sitting around twiddling our thumbs in space and drooling over the advent of entrepreneurial exploitation of space resources, companies and advocacy groups loudly and persistently call for government action and laws to “make it so.” But one can imagine a variety of circumstances in which this law will make no difference whatsoever. If a private company engaged in some activity that involved exploitation of an extraterrestrial resource of limited extent (e.g., a rich deposit of ice on the Moon near permanent sunlight) and their possession of that resource was challenged by some nation-state present nearby, how might the American government react? Presumably, peaceful diplomatic means would be pursued at first, but then when they can’t-don’t-won’t agree, then what?
The U.S. federal government guarantees the rights of American citizens (including corporations) to their property and is responsible for resolving conflicts. Often conflicts escalate to higher levels, up to and including stalemates (that block free enterprise) and confrontations that decide the outcome. Would the United States go to war over a dispute involving space resources that some company might have with another nation? I don’t know, but I suspect that the answer is no – and other countries (and investors) will know this.
There are many reasons I advocate a return to the Moon as our next national goal in space and one reason, not often considered, is the establishment of an American right of access to space and its resources. The U.S. Commercial Space Launch Competitiveness Act, despite appearances, does not establish this right. Laws that we pass are not binding on other nations or entities outside the boundaries of the United States. Ultimately, future disputes (and make no mistake, there will be some, despite the best intentions of all parties) must be settled between entities of comparable status and between their parent nations. Thus, I contend that we must have “skin in the game” at an international level, not only at the corporate one.
Declaring the rights of our citizens to find and exploit space resources is one thing; defending that right in a potentially hostile world is another. In the same way that ships operated under American registry are protected by the diplomatic, economic and military power of the American government, future space businesses will look to their government (as they must and have a right to) to protect their rights, enforce contracts and act as an insulating layer between them and the cold realities of global politics (what’s written on paper is only as good as your ability to enforce it, or ignore it). In its earliest stages, the financial stakes are likely to be small and not well understood in terms of their national economic and security implications, so it is unlikely that the federal government would “go to the mat” to defend the interests of a small (somewhat experimental) business.
But when taking the long-view (that of any serious investor), if that same government’s own right of access to and use of some extraterrestrial resource were threatened, the full weight of that government’s various assets would be brought to bear on a resolution of that threat (or whose mere presence would short-circuit outside agression to begin with). This is one reason why the utilization of space resources – an activity critical to the long-term future of humanity in space – is not only an appropriate activity for the federal civil space program, it is an essential one, in anticipation of and in parallel with private development of these resources. Right now, we are uncertain just how difficult it is to extract and use space resources for a variety of applications. In short, this activity is an engineering research and development effort. This is exactly what NASA was established to do – to determine if space-related activities and technologies are possible and if they are, to then encourage the private sector to engage in such activities, using the results of government-funded research to grow their investments and expand our economy.
So while I applaud this bipartisan effort to legally endorse the principle of space resource utilization, it is not sufficient. Instead of pursuing wasteful public relations stunts designed to convince the public that we are on our way to Mars, NASA should instead work on understanding how the material and energy resources of near-Earth space – particularly the water at the poles of the Moon – can be used to create new spacefaring capability. The federal government should do this because the creation of routine access to cislunar space is important to our national strategic and commercial interests. It is also vital to establish our national rights and obligations within the world spacefaring community. U.S. commercial space companies will be there once they know that their nation’s leaders understand the stakes involved and are ready to lead on this new frontier.