CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ HOLES IN THE HULL they say, high risk can yield high rewards. As the California News Times recently expressed, “Astronomical wealth is there among the stars. A 226 km diameter metal block, Psyche 16 is one of the targets of miners. It is estimated to contain $ 10 trillion worth of iron, which is about 100,000 times the world’s total economic production”. 10 However, asteroids like Psyche 16 are found between Mars and Jupiter. It will be highly unlikely that mining asteroids in that part of our solar system will occur anytime soon due to the sheer scale of the distances involved. Capturing near-Earth asteroids with the help of autonomous space craft will most likely be the starting point of any space mining industry. 11 However, none of this can occur without some sort of legal certainty regarding those resources and the industry as a whole. On 25 November 2015, President Barack Obama enacted the U.S. Commercial Space Launch Competitiveness Act (Competitiveness Act). 12 One of the Competitiveness Act’s stated purposes is to advance commercial exploration and utilization of space resources and promote the rights of U.S. commercial entities. 13 The Competitiveness Act expressly provides that any United States citizen who recovers asteroid or space resources for a commercial purpose, is entitled to full proprietary rights to those resources in accordance with both national and international law. 14 Who or what is classified as a citizen for the purposes of this act is far broader than what is traditionally thought of as a citizen. Under the Competitiveness Act, a citizen is of course a living, breathing person who acquires citizenship through naturalization or birth. 15 However, a citizen is also an entity created by U.S. Federal law or by a State, as well as one created by the laws of a foreign state as long as its controlling interest is held by a United States citizen or an entity created under U.S. law. 16 Non-state actors, particularly commercial interests, have become a focal point regarding the ambiguity of ownership found within the Outer Space Treaty of 1967 (OST). Some argue that there is nothing binding the United States from limiting these non-state actors from acquiring mining rights and therefore it is legally sound, 17 essentially, following the old legal adage of what is not prohibited is permitted. Although this can be further compounded when considering a sovereign state acting as a private entity. However, squaring the circle between the U.S. national law and international law regarding the acquisition of proprietary rights may prove to be difficult. While H.R. 1508 (Space Act) was being debated in the Science, Space, and Technology Committee, Prof. Joanne Gabrynowicz from the University of Mississippi penned a letter to the ranking member voicing serious concerns that the proposed bill appeared to be in conflict with the U.N. Outer Space Treaty, irregardless of the phrase “consistent with the existing international obligations of the United States”…, 18 which is now 10 Space mining: black holes await investors, Cal. News Times (Aug. 14, 2021), (https://californianewstimes.com/ space-mining-black-holes-await-investors/482951/). 11 See Trans Astronautica Corporation, YouTube, WorkerBee and MiniBee (posted Oct 4, 2021) (available at https:// youtu.be/IYxYM485-Ws). 12 H.R. 2262, 114 th Cong. (2015) (enacted) (Competitiveness Act). 15 51 U.S.C. § 50902(1)(A). 16 id. § 50902(1)(B)&(C). 17 LEWIS, A., A bundle of sticks in zero g: Non-state actor mining rights for celestial bodies, 25(2) Sw. J. Int’l L. 393, 395 (2019). 18 H.R 1508, 114 th Cong. at 20 (Minority Views) (2015). Even though H.R. 1508 died in committee due to the end of the Congressional session, the text was consolidated into the Competitiveness Act. 13 51 U.S.C. § 51302(a)(1 & 3) (2015). 14 51 U.S.C. § 51303 (2015).

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