Can Congress Grant Private Companies The Right To Mine Asteroids?

U.S. companies are eyeing asteroids as the next frontier in lucrative mining ventures. But, they say, their plans are stymied by the vague status of private ownership in space. Earlier this summer, members of Congress introduced a bill to protect property rights for commercial exploitation of asteroids. Is that legal?

[Image: NASA]

The bipartisan legislation, introduced by Rep. Bill Posey (R-FL) and Rep. Derek Kilmer (D-WA), is called the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act. The two congressmen, both members of the House Science, Space and Technology Committee, declared in a joint statement that the bill would not only create more jobs but also safeguard America's economic security:

"We may be many years away from successfully mining an asteroid, but the research to turn this from science fiction into reality is being done today," said Rep. Derek Kilmer.

"Businesses in Washington state and elsewhere are investing in this opportunity, but in order to grow and create more jobs they need greater certainty. That's why I'm excited to introduce this bill with Representative Posey so we can help the United States access new supplies of critical rare metals while serving as a launch pad for a growing industry."

Currently, rare minerals used to manufacture a wide range of products are found in a small number of countries. This has left the United States dependent on foreign nations for these resources. The limited supply and high demand for these materials, alongside major advances in space technology and a deeper understanding of asteroids, has led a number of private sector investors to begin developing plans to identify and secure high-value minerals found on asteroids and transport them for use here on Earth.

Awesome! Who could possibly throw a wet blanket on that idea?

Well, for starters, the rest of the world—which would not look favorably upon companies planting the American flag on potential mining sites throughout the solar system. And, other countries would not-so-gently remind the United States that it is a signatory to several international agreements, including a UN treaty that prohibits nations from claiming sovereignty over any celestial bodies.

Big Ambitions

Can Congress Grant Private Companies The Right To Mine Asteroids?

Congressmen Posey and Kilmer, however, say their legislation is not espousing a unilateral, U.S. land-grab. A spokesman for Posey's office told Space Policy Online that the bill repeatedly states that it should be implemented in a manner "consistent with international obligations" and does not confer ownership rights to asteroids. It only "allows those companies that mine the asteroid to keep what they bring back." And the bill affects only U.S. companies engaged in such activities.

[Image: Planetary Resources]

"They designed it not to cause too many explosions or conflicts or problems," said Space Frontier Foundation co-founder Jim Muncy at a conference held earlier this summer. He added that Posey and Kilmer discussed the bill with State Department officials "to find out whether or not it would be a big problem for current U.S. international obligations and policy." That's one reason, he said, that the bill only covers asteroids and not the Moon or other solar system bodies.

The Space Frontier Foundation is one of several organizations and companies that comprise the "NewSpace community," which is dedicated to promoting innovative commercial ventures as the primary means to expand our presence beyond the Earth.

That includes two U.S. companies that are actively developing plans for asteroid mining: Deep Space Industries (DSI) and Planetary Resources.

The Virginia-based DSI has said that, within the next two years, it plans to launch a fleet of small "FireFly" spacecraft (below) on missions to scout out potential asteroids for mining.

Can Congress Grant Private Companies The Right To Mine Asteroids?

[Image: Deep Space Industries]

Meanwhile, the Washington State-based Planetary Resources is developing its own orbiting telescope to conduct asteroid surveys. In a recent interview, Planetary Resources President and Chief Engineer, Chris Lewicki explained how he viewed asteroid mining as an essential step toward establishing a self-sustaining economy in space:

"Have you ever wondered why the space economy hasn't seen exponential growth with Moore's Law like we have witnessed with high-tech industries here on Earth?" he asks

According to Lewicki, the business of mining asteroids for fuels could generate a trillion-dollar market. In addition to platinum, the main asteroids in space mining companies' target list are abundant in hydrogen and oxygen, which can be turned into propellants and sold to fill up the tanks of everything, from commercial satellites to NASA deep space vehicles.

"This will literally and figuratively fuel expansion of the space economy by providing a locally sourced fuel resource that will change how industry operates in space," says Lewicki.

Besides, says Lewicki, water harvested from asteroids can also be used as a radiation shield for humans during deep space expeditions to Mars, consumption and even aid in several processes tied to mining metals off asteroids.

Unsurprisingly, proponents of space mining don't look favorably upon many international treaties, which they view as archaic impediments to America's celestial manifest destiny. The ASTEROIDS Act, they believe, is a step in the right direction—especially since, they say, it tip-toes around potential legal challenges by focusing on big rocks instead of the moon and the planets. Moreover, the legislation doesn't declare asteroids to be anyone's personal property. Private ownership is restricted to whatever is extracted from the asteroids.

But, although space law—like space itself—remains a largely unexplored area, some experts are uncertain whether this proposed legislation could stand up to legal scrutiny.

Law and Order

Can Congress Grant Private Companies The Right To Mine Asteroids?

[Image: NASA]

One sticking point under international law is what constitutes a "celestial body." Article II of the UN's 1967 Outer Space Treaty—to which the United States and 102 other countries are signatories—states that: "Outer 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."

Some say a "celestial body" refers only to planets and moons; others say it refers to any natural physical object in our solar system. So, which is it?

Short answer: it may depend on whether or not you can move it. For a more detailed answer, I emailed Michael Listner, an attorney and the Founder and Principal of Space Law & Policy Solutions—a firm that counsels governmental and private organizations on matters relating to space law and policy.

According to Listner:

There are differing views on this, but the International Institute of Space Law (IISL) through one of its working groups considered this question. What this particular group concluded was that the legal status of "celestial bodies" encompasses a legal definition that makes them "natural objects in outer space ... which cannot be artificially moved from their natural orbits." Using this legal litmus test, if a natural object such as an asteroid can be moved artificially then it ceases to be a "celestial object" as alluded to in the Outer Space Treaty.

What is critical to understand about this legal definition is that even though an asteroid may not presently be movable by artificial means, it may be possible to do so in the future. Therefore, an asteroid that presently is classified as a "celestial object" may not be so, if and when the means to move it artificially becomes available.

It is important to understand that this is a suggested legal definition that has not been tested yet. However, NASA is proposing to relocate an asteroid with its Asteroid Redirect Mission [image above]. If and when this occurs, the act of relocating the target asteroid could establish customary international law for the IISL definition of "celestial object."

The legal ramifications are huge because it could reclassify not only the target asteroid but also asteroids of similar size and mass and effectively take them out of the Outer Space Treaty. This would allow sovereign nations to lay claim to them and thereby grant the much coveted property and resources rights to private entities much in the sense that the federal government grants exploitation rights for oil and other minerals on federal lands. Moreover, if this legal definition is adopted as custom, larger asteroids could eventually fall out of the category of "celestial bodies" as the technology to artificially move them becomes available. The key is it must be demonstrated that moving an asteroid can be done; the ability to move it in theory would not be enough to establish custom.

And then, there's the second key issue: Does international law permit private ownership of any resources extracted from a celestial body?

Some say it does, and point to Article I of the Outer Space Treaty, which states: "Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States…."

The key word there is "use," which could be interpreted to include mining.

Berin Szoka and Jim Dunstan of the think tank TechFreedom cited another legal precedent in an editorial they wrote for Space News:

Customary international law already recognizes that extraterrestrial materials brought back to Earth can be owned and sold — just like the thousands of space meteorites available today on eBay. The U.S. and Soviet Union both claimed ownership in lunar resources extracted and returned to Earth, and exchanged samples without international objection.

A similar precedent can be found in a British legal decision, which permitted the private sale of lunar soil that had been obtained by the Soviet Union.

On these points, however, Listner is skeptical:

The term "use" is vague and is not defined by the Outer Space Treaty. Therefore, it is open to many interpretations based on your point of view. When a treaty is interpreted it is done so by the standards set forth in the Vienna Convention and whether the term "use" could apply to mining and property rights would have to be evaluated using those standards. It is important to note that there is no specific prohibition to granting mining rights but neither is there anything specifically allowing it either.

Furthermore, when you look at a treaty you can't just pick and choose how you define a specific term without considering the intent of the treaty [as a] whole. That means while "use" could possibly be interpreted to allow for mining rights it would have to be evaluated in the context of the Outer Space Treaty in general and not just by cherry-picking Article I.

And, as for the private ownership of extracted resources:

My opinion is that the effect of the Soviet lunar sample precedent will be negligible when it is compared to the potentially trillions of dollars in mineral resources that could be extracted. The sale of the Soviet lunar sample was so minuscule that the international community hardly batted an eyelash….

Treading Carefully

The ASTEROID Act does score points for being crafted with international law in mind. It calls upon the U.S. government to:

Promote the right of United States commercial entities to explore and utilize resources from asteroids in outer space, in accordance with the existing international obligations of the United States...and to transfer or sell such resources; and develop the frameworks necessary to meet the international obligations of the United States.

But, simply declaring that legislation is in accordance with international law doesn't mean the U.S. can unilaterally interpret that law. That approach, Listner says, carries risks:

International political obligations dovetail with international legal obligations. In order to grant resource rights to private individuals under U.S. jurisdiction, the United States is going to have to convince the international community that granting resource rights to individuals under its jurisdiction is consistent with its international legal obligations under the Outer Space Treaty and its progeny. There is bound to be political pushback by other nations who don't have or could ever hope to have the technology or capability to mine asteroids, which would shut them out of those resources. Those nations could band together and apply significant political pressure to deter the United States from granting property rights and insist that the current body of international law could be interpreted as forbidding such a grant.

And if hypothetical arguments are insufficient to convince Americans to tread carefully before they start claim jumping their way across the solar system, then they should look no farther than the Arctic, where the melting ice and promise of untapped natural resources has significantly ratcheted up diplomatic and even military tensions due to competing claims of territorial sovereignty.

Can Congress Grant Private Companies The Right To Mine Asteroids?

For now, though, Congress seems in no rush the pass the legislation without performing a healthy dose of due diligence. The ASTEROID Act has been referred to the House Subcommittee on Space, where ranking member, Rep. Donna Edwards (D-MD), has said, "I'm always opposed to us moving forward on legislation without doing any hearings, any kind of fact-finding. I just think it's bad policy to move policy forward when you haven't done the investigative work that it takes to do that."

And, remember to keep on eye on NASA's proposed Asteroid Redirect Mission. If it does get approved—and if it succeeds—it could be responsible for a paradigm shift in international space law that redefines what we've traditionally considered to be "celestial bodies."