The United States Commercial Space Launch Competitiveness Act: the creation of private space property rights and the omission of the right to freedom from harmful interference.

INTRODUCTION

In March 2004, the European Space Agency successfully launched the Rosetta Spacecraft from Kourou, French Guiana. (1) Over $ (1). (5) billion dollars, ten years, and four billion miles later, the Rosetta Spacecraft released a sophisticated 220-pound probe called the "Philae," which landed on Comet 67P/Churyumov-Gerasimenko on November 12, 2014. (2) The landing on Comet 67P, the first of its kind, is one of the most recent technological advancements in space travel and exploration. (3) During its year-long stay on Comet 67P, the Philae probe has drilled into the surface to collect samples, taken a series of photographs, and conducted a swath of experiments, all of which have provided never-before-seen data that has the potential to shed light on the origins of the universe. (4)

Perhaps more important than the information gleaned from the Philae landing is the symbolic impact of the mission. The Philae landing establishes that humans possess--or will soon possess--the technology for extensive commercial enterprises in space. Specifically, proof of our ability to land on a comet makes the idea of landing on and potentially excavating an asteroid more realistic. (5) Asteroids, comets' similarly-situated cousins, (6) present potentially extraordinary incentives for mining and exploitation. (7) There are three types of asteroids: rare "M-class" asteroids, which contain ten times as much metal as other asteroids; "Stype" or stony asteroids; and "C-type" asteroids, which contain significant amounts of hydrated clay minerals. (8) According to some estimates, certain "platinum-rich asteroids just 500 meters across could contain more than the entire known reserves of platinum group metals." (9) Additionally, because asteroids have very low gravity, the fuel required for landing and exiting is greatly diminished, making the potential cost of asteroid mining more palatable. (10) Despite the tremendous amount of rare and precious minerals contained within asteroids, asteroid mining's most valuable purpose may be derived from something that is already abundant on earth: water." Water, extracted from hydrated clay minerals present on asteroids, can be harvested and turned into hydrogen rocket fuel, giving asteroids the potential to be deep space gas stations. (11) Plans to mine asteroids are not entirely new, as evidenced by the formation of several companies looking to extract resources from space enterprises. (13)

Until recently, potential space investors in the United States and internationally had no legal assurances that they would be able to reap the financial benefits of their investments. (14) Specifically, no legal clarity existed as to whether commercial actors would be entitled to property rights in space resources. (15) Reacting to this glaring need for regulation in the industry, Congress passed the U.S. Commercial Space Launch Competitiveness Act of 2015 ("USCSLC") (16) with the stated purpose to "promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources." (17) The USCSLC guarantees commercial actors the rights to "possess, own, transport, use, and sell the asteroid resource or space resource" that has been "obtained" by the commercial entity. (18) While the passage of the USCSLC goes a long way toward providing clarity for investors looking to begin asteroid mining enterprises, (19) this type of legislation also presents three main issues that will shape its practical impact. First, is giving commercial actors property rights to extracted resources consistent with international law? Second, how will the word "obtained" be defined and used in practice? Third, how will the right to "freedom from harmful interference"--as referenced in USCSLC (20)--be enforced and implemented in conjunction with the property rights outlined in the statutes?

This Note will address all three questions in the following parts. Part I will analyze the USCSLC in terms of its compliance with international law, specifically as it pertains to the Outer Space Treaty, (21) concluding that the USCSLC most likely complies with international law. Part II looks to other property law principles and analogous scenarios that seek to define the notion of "obtained" within the USCSLC. Part III examines how the right to "freedom from harmful interference" eroded in the legislative drafting process and how previous versions of the right may have functioned as a quasi-property right. The Note will also address the desirability and underlying fairness concerns of the proposed rights given to commercial actors extracting resources in space, finding that the bundle of rights given to commercial actors in space is a necessary first step in the development of the space industry as a whole.

1. IS THE USCSLC CONSISTENT WITH THE UNITED STATES' INTERNATIONAL TREATY OBLIGATIONS?

   Does the conferral of property rights over extracted resources as established by the USCSLC comport with international law? (22) The USCSLC guarantees that "[a] United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained." (23) Other than the ambiguity surrounding the word "obtained," which this Note will address in Part III, the proposed legislation straightforwardly approves commercial appropriation of asteroid resources. This Note will examine both the establishment of property rights in space resources and the right to freedom from harmful interference for the rights' compliance with international law.

   To answer this question, one must first turn to the Outer Space Treaty ("OST"). Created in the midst of the space race, it is the most relevant treaty dealing with the appropriation of space resources. (24) The OST "is very often perceived as a 'Constitution' for outer space." (25) Concerns over space imperialism were the main impetus for the central provision of the OST: the principle of nonappropriation of space by Nation-States. (26) Article II of the OST states, "[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." (27) Additionally, Article I of the OST states, "[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind." (28) The United States and one hundred other states have ratified the treaty and an additional twenty-five have signed it. (29)

   Taken together, it is clear that the OST precludes any claim over territorial rights in space of any kind. (30) What is less clear, however, is whether the appropriation of space resources is consistent with the OST, (31) as the OST does not explicitly mention the extraction or ownership of space resources. (32) Some scholars argue that the property rights guaranteed by the USCSLC might violate Article II of the OST because authorizing the private appropriation of space resources is tantamount to enabling national appropriation under the OST. (33)

   However, the concern that the USCSLC will violate the OST does not hold under closer scrutiny for several reasons. First, if the OST was meant to preclude private property rights in space resources, then it would have contained an explicit section prohibiting individual actors from claiming resources. "[U]nder international law states may do whatever is not expressly forbidden. 'Restrictions upon the independence of States cannot ... be presumed.'" (34) Furthermore, "[t]he long-accepted legal doctrine expressio unius est exclusio alterius says that, when interpreting statutes, we should presume things not mentioned were excluded by deliberate choice, not inadvertence." (35) Therefore, the very fact that the OST does not directly deal with the appropriation of space resources is strong evidence that it does not preclude it. Some also argue that when the OST says "the moon and other celestial bodies, shall be free for exploration and use by all states," the signatories were implicitly giving permission for States to extract resources from celestial bodies. (36)

   The second reason that the OST does not prohibit private resource extraction derives from the distinction between authorizing individuals to reap the benefits of obtained resources and giving those same individuals rights to the land itself. (37) Guarantees of private ownership of extracted resources do not "in any manner, claim sovereignty over a celestial body or portions of outer space; it only provides for rights for private entities to use the resources on a celestial body (specifically asteroids)." (38) If the bill allowed for the claiming of unextracted resources, then there would be a strong argument that the bill was akin to giving land rights. (39) While the definition of "obtained" has the potential to be interpreted in a variety of ways, the words "obtained" and "unextracted" are almost certainly mutually exclusive. (40)

   Third, the United States' refusal to sign the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement") is demonstrative of the fact that U.S. officials interpreted the OST as permissive of private resource extraction enterprises. (41) The Moon Agreement was a treaty designed to fill in gaps in international space law and, in particular, address the ownership of space resources. (42) The agreement, however, was impeded by ideological differences, and the U.S., along with ultimately all other space-faring nations, withdrew from the agreement because it was too collectivist. (43) As a result, the treaty was seen as having the potential to "doom any private investment directed at space resource exploration." (44)...