On November 25, 2015, President Obama signed H.R. 2262, the “U.S. Commercial Space Launch Competitiveness Act,” into law.  Included within this bill was the “Space Resource Exploration and Utilization Act of 2015” (the Act), which, on its face, authorizes private mining of asteroids and other “space resources.” The Act requires the President to facilitate and promote United States citizens’ commercial mining of space resources and to “discourage government barriers” to the development of a domestic space mining industry. See 51 U.S.C. § 51302(a).  Most notably, though, the Act states that private United States citizens and corporations are “entitled to any asteroid resource or space resource obtained,” including the rights to own or sell those resources. See 51 U.S.C. § 51303.

Although the Act purports to grant potential asteroid miners with a property right in the resources they recover, experts on space law have questioned whether that property right is one the United States government actually has the authority to give. In arguing this point, they rely on treaties such as the “Outer Space Treaty” of 1967, in which the United States and other signatories agreed that space exploration “shall be carried out for the benefit and in the interests of all countries,” and that celestial bodies such as asteroids “shall be free for exploration and use by all States” and “not subject to national appropriation.”  See TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER CELESTIAL BODIES, available here.

Although this debate may be largely academic at present, its resolution will play a key role in the commercialization of outer space resources as the asteroid mining industry develops over the next ten to twenty years.