With the October 2nd release of The Martian and the September 28th confirmation that there is, in fact, water on Mars, outer space has been the subject of much conversation in recent months. But there is an aspect of space not being talked about, which may become far more important in the not-too-distant future: space mining.

The resources available in outer space are incredibly valuable: Mining for lunar water could make it up to 90 percent cheaper to colonize the moon, and extracted asteroid minerals and metals could help man travel well beyond low Earth orbit. As a result, commercial companies — Planetary Resources and Deep Space Industries, for example — are openly planning to mine asteroids. United Launch Alliance, the space-oriented joint venture between Lockheed Martin and Boeing, has already scheduled its 2016 launch of NASA’s OSIRIS-Rex space mission, which will mine asteroid samples.

But space, though often called the “final frontier,” is not actually lawless space free for the reaping. It is subject to several national and international laws, the most notable of which being the United Nations’ Outer Space Treaty of 1967.

The Outer Space Treaty (OST) holds that “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”

This means that everything in space – the moon, Mars, and the several thousand asteroids (and minerals) within our technological reach – legally belong to no one.

This makes for great action in The Martian: at one point, Mark Watney (the stranded astronaut) needs to board a spacecraft on Mars, but does not have outright NASA permission. Thus, by boarding the craft, he becomes a pirate under international law, which he succinctly points out in the book: “That makes me a pirate! A space pirate!”

But beyond the world of sci-fi, the OST may have real implications for the mining of space resources.

In the hopes of authorizing and aiding the fledgling space mining industry, the House of Representatives passed a bill in May giving asteroid mining companies property rights to the minerals they extract from space (like an intergalactic Rule of Capture). This Space Act of 2015, which awaits the Senate’s approval, is predicted to pass this month.

But if the OST promises free access to all celestial bodies, how can space mining be permitted?

Turns out, it might not be. Fabio Tronchetti, a lawyer at the Harbin Institute of Technology in China, argues that the Space Act would violate the OST. “States are forbidden from extending their territorial sovereignty over outer space or any parts of it,” he writes in an article published in Space Policy.  “Despite arguments claiming otherwise this prohibition also extends to private entities.”

But it might not be so simple. Frans von der Dunk, a space law professor at the University of Nebraska, says that nothing in the proposed law outright violates the OST, and – with one test vehicle in low orbit and the ULA launch scheduled for next year – it is likely too late to get an effective governance scheme to pass under the international community.

It is likely that the Space Act, should it pass, will itself likely not be a good substitute. Because it requires the President to set up a regulatory structure for the mining within 180 days of signing the bill into law, Tronchetti argues, it “might not be a sufficient step to fill in the gap resulting from a near-absolute absence of a national regulatory framework governing private mining activities on asteroids.” Instead, he argues, the United States should “gradually develop a national regulatory framework to manage (non-governmental) activities on celestial bodies, including the establishment of technical and safety standards as well as of licensing procedures.”

Only time will tell if the Space Act will pass. But what it has done has highlight the gaping hole in the international structure governing the frontier beyond our atmosphere, the excavation of which is quickly becoming a reality.

Alison Morris





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2 Responses to An Outer-Space Rule of Capture to Stir Up Space’s International “Waters”

  1. Neil says:

    Until a new international framework clarifies the OST’s ambiguities regarding the resources residing within celestial bodies, it seems sensible to me to apply the international law principle of Common Heritage of Humankind to any such resources. This would hold that resources in the global commons (i.e., areas beyond the limits of national jurisdiction, like space) are beyond application of national sovereignty, and thus entail collaborative international management and sharing of benefits. I would also advocate for application of the Common But Differentiated Responsibilities principle, but we’ve seen how poorly that’s been applied in cases like the Kyoto Protocol.

  2. akennedy says:

    Fabio Tronchetti’s article discussing the extension of OST prohibitions to private entities is particularly interesting. Lunar Embassy – the “lunar real estate” company that claims property rights to the surface of the moon – cites the UN Outer Space Treaty of 1967 as its legal authority for doing so. The company’s website explains Lunar Embassy’s Legal Right To Offer Moon Land, claiming “The UN Outer Space Treaty of 1967 stipulates that no government can own extraterrestrial property. However, it neglects to mention individuals and corporations. Therefore, under laws dating back to early US settlers, it is possible to stake a claim for land that has been surveyed by registering with the US Office of Claim Registries.”

    I wonder how many people are of the mistaken belief that they actually own land on the moon?