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Canadian, UK Law Professors Condemn Space Mining Provisions of Commercial Space Act (examiner.com)
MarkWhittington writes: The Commercial Space Launch Act, which includes provisions allowing American companies the right to keep resources that they mine in space, was recently signed into law by President Barack Obama. While the act has been hailed as groundbreaking in the United States, the space mining title has gotten an angry reaction overseas. In an article in Science Alert, Gbenga Oduntan, Senior Lecturer in International Commercial Law, University of Kent, condemned the space mining provisions as environmentally risky and a violation of international law. Ram Jakhu, a professor at Canada's McGill University's Institute of air and space law, adds that space mining is a violation of the Outer Space Treaty and should not be allowed.
Any treaty that is unenforceable isn't worth a damn. If the US, China, Russia or anyone else wants to go mine an asteroid, there's precious little anyone else can do about it.
The world's burning. Moped Jesus spotted on I50. Details at 11.
Which is also stupid. As unseemly as it might be to Canadians, an unrestrained land-grab in space is the most likely vehicle to spur progress. The "traditional" way a person or country laid claim to land on earth was you had to go there and establish a permanent colony. If we had a similar rule (instead of this stupid treaty) we would probably already have colonies on the moon and Mars by now.
It is had not to agree with Ricky Lee of Australia, who wrote his thesis on the subject:
Quite.
I went to the House hearing for this Bill, and also talked to various staffers and actual space lawyers (as opposed to professors) about it. I feel, and they seem to feel, that the 2015 Space Act is entirely consistent both with the 1967 Outer Space Treaty, which says
and also with the precedent set by the US, Russia and Japan, all of which have material returned from celestial bodies. The reality is that these three countries have all treated those materials as property, which can be and has been traded. That is the actual customary international law here, not the Moon Treaty, which has been ratified by no major space-faring nation, and which is a dead letter. In addition, each state gets to set the laws on actions by their citizens in space, and are responsible for those actions (say, if they cause damage to another country's spacecraft).
Finally, the 2015 Space Act itself says
So, despite most of the headlines announcing this law, it doesn't (and couldn't) allow for the ownership of asteroids, just of material extracted from asteroids, exactly as is allowed for in the Outer Space Treaty.
I have to say that the space lawyers I have talked to share my puzzlement as to what the professors say things that seem so ungrounded. (They are of course welcome to disagree or oppose, but you would expect that they would have arguments grounded in facts.)
Note, also, that none of the other space powers has complained about this act, which they were and are certainly able to do it they feel it violates the '67 Outer Space Treaty.
I'm not sure what you're talking about. Customary international law (CIL) is regularly followed/applied by SCOTUS when international disputes come up. E.g. SCOTUS pretty much always follows the protocols listed under UNCLOS. The US has not signed on, but it has regularly followed UNCLOS as CIL. It's basically seen as "common law".
162 States, including many maritime powers, have signed on to UNCLOS III. It is reasonable to view it as CIL. It is not, by the same standard, reasonable to view the Moon Treaty in the same way, as no major space power has ratified it.
Note, also, that nothing prevents the US from adopting laws that go against CIL, as long as it is based on agreements we have not ratified.