The US Says Asteroid Mining Is Legal for Americans. What About Everyone Else?

A new US law says American companies can keep resources they obtain in space, but some argue it contravenes international space law.

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Dec 1 2015, 12:30pm

Asteroid mining concept. Image: Denise Watt/Wikimedia Commons

Who owns asteroids in outer space? What about if you go up and take a chunk out of one, who owns that bit? According to a newly signed law, you own whatever asteroid resources you manage to obtain—but it only applies if you're a US citizen.

President Obama signed the US Commercial Space Launch Competitiveness Act into law on 25 November 2015. Among other things, the Act essentially opens the prospect of asteroid mining up to commercial entities in the US. It states:

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, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.

The broader space community is, however, not completely enthusiastic about the US's finders-keepers policy, with some experts claiming the new law may even be at odds with international space law.

Asteroid 433 Eros. Image: NASA/Wikimedia Commons

"It is my opinion that any US entity obtaining asteroid resources would be in contravention of international law, as would the government for permitting it," said Sa'id Mosteshar, the Director of the London Institute of Space Policy and Law, in an emailed statement. "The Treaties governing space activities do not give the US that right, and the US government cannot assign to its citizens rights that it does not have."

Asteroid mining is an appealing prospect to commercial companies, and with good reason: space rocks harbour valuable raw materials such as iron, nickel, and platinum, which could make a pretty penny back home, especially as Earth's own resources run lower. Some of their components could also be valuable for use in space—water, for instance, could be used in spacecraft propellant. US companies including Planetary Resources and Deep Space Industries have their eye on that extraterrestrial booty.

But unlike the Earth, space hasn't been carved up into different territories, so it's unclear who, if anyone, should have a right to materials that are out there for the taking.

"The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries"

International space law is largely governed by several key United Nations treaties, the first and best-known being the 1967 Outer Space Treaty, also known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.

This treaty, put together in the Cold War and ratified by over 100 countries including the US, UK, Russia and China, prevents countries from placing nuclear weapons in space, prohibits nations from claiming sovereignty over outer space, and generally ensures that space is used for the advancement of science and peaceful cooperation, stating that "the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind."

L-R Peter Diamandis, Chris Lewicki & Steve Jurvetson of Planetary Resources. Image: Steve Jurvetson/Flickr

But it's not really clear where commercial interests come into all this. "The space law regime as it currently stands came about not because of commercial use and not because of one country or one company wanting to mine asteroids; it actually came about to protect space from becoming a place of war and conflict," said Nicholas Puschman, executive secretary at the European Centre for Space Law (ESCL). While the ESCL is largely funded by the European Space Agency (ESA), Puschman was keen to emphasise that his views did not represent the opinion of ESA.

It's important to note that the US insists it is not claiming ownership over extraterrestrial bodies—in fact, it's very careful to make that disclaimer in the text of the new Act. But can it give away something it doesn't own?

There is another, later UN treaty that goes into more depth when it comes to exploiting space resources: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, or Moon Agreement. But very few countries have ratified that; the US has not, so it has no obligations there.

While this is the first time asteroid mining has been so closely scrutinized, Puschman suggested that some other space resources were already being "exploited," such as orbital spectrum or samples of space bodies for scientific analysis. "It depends how you define 'resources,' but space resources are currently exploited," he said.

"If companies do go into space to mine, would other countries accept these definitions and accept these terms?"

The new law is not just about a money-chasing land-grab. Allowing commercial companies to mine and keep the goods offers an incentive to invest in space exploration, and being able to use some of those resources in further space missions could lead to new innovations in spaceflight.

For now, experts can't agree on whether the US law is acceptable. It could well be that other countries follow with their own national legislation, though Puschman pointed out that would-be asteroid mining companies don't really exist outside the US yet. He expects to see the topic discussed at the next meeting of the UN Office for Outer Space Affairs (UNOOSA) legal subcommittee in April, and maybe even get some state reactions to the US's position.

Whatever happens, legislation must ultimately be based on international cooperation, or things could get messy. A major issue could occur if some countries don't recognise the rights granted in the US law. "If companies do go into space to mine, would other countries accept these definitions and accept these terms?" said Puschman. This could have knock-on effects on even seemingly mundane things like property rights, for example making it difficult for US companies to export any goods they retrieve.

For its part, the new US law makes multiple references to the country's "international obligations." Exactly how those obligations are interpreted seems to be the point of contention.

Unsurprisingly, the companies already working in this field are delighted at the news; Planetary Resources cofounder Eric Anderson called it "the single greatest recognition of property rights in history," while Deep Space Industries Chair Rick Tumlinson said that, "In the future humanity will look back at this bill being passed as one of the hallmarks of the opening of space to the people."

Puschman said it will take some time to gauge the international community's reaction and process the legally complex issue. "I don't think we can be fully informed yet of the magnitude of this," he said.

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