Staking a claim in asteroid mining

Illustration by Michael Byers
Date:24 April 2013 Tags:, ,

Go to space, young man. Asteroid mining is the future, and the law’s on your side! By Glenn Harian Reynolds

Suddenly, the idea of asteroid mining is everywhere. As a recent feature in Popular Mechanics noted (“How to mine an asteroid”, September 2012 issue), asteroid mining has gone from a “someday” idea to a business plan for more than one company. As a professor who’s been writing, teaching and practising space law since the 1980s, I say, why not? Asteroids are valuable, they’re out there, and they are free for the taking.

Or are they?

Asteroids are certainly available, and they’re valuable. More than 750 000 asteroids measure at least 1 kilometre  across, and millions of smaller objects are scattered throughout the solar system, mostly in the asteroid belt between Mars and Jupiter. Even a comparatively small asteroid is potentially quite valuable, both on Earth and in space.

A 24 m-wide M-type (metallic) asteroid could hold 30 000 tons of extractable metals, including R450 million in platinum  alone. A 7 m-diameter C-type (carbonaceous) asteroid can hold 91 000 litres of water, useful for generating fuel and oxygen. Even 5 litres of water, weighing in at 5 kg, can cost hundreds of thousands of rands to launch into Earth orbit. Prices will probably come down now that SpaceX and other private launch companies are in the game. But the numbers would need to improve a lot for water launched from Earth to compete with water that’s already  floating in space.

Larger asteroids could be worth as much as the GDP of a superpower. Asteroid 1986 DA is a metallic asteroid made up of iron, nickel, gold and platinum. Estimates of its value range between R55 and R64 trillion. Something that size won’t be retrieved any time soon, but the  figure gives some idea of just how much wealth is out there.

So it’s raining soup – let’s get a bucket! Or, rather, let’s sidle up to a convenient-size asteroid, latch on and tow it to Earth orbit, where we can exploit its resources. Oh, sure, moving it may take a while and cost a bit –  but so does launching water into orbit or mining platinum here on Earth.

But remember that open question. If you go get an asteroid and bring it back, is it yours? On Earth, of course, no one would open a mine without being sure they owned the land, or at least the mineral rights. The same is true in space. But whereas mining law on Earth is pretty much settled, asteroid-mining law isn’t so clear yet.

The 1967 Outer Space Treaty prevents nations from making territorial claims beyond Earth: “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,” it states. But what is “national appropriation”? And what is a “celestial body”?

Those are the kinds of issues that lawyers grapple with. Space law used to be mainly an academic pursuit, but no longer
– in fact, the American Bar Association has just published a guidebook in the field. Most experts, including me, believe
that a ban on “national appropriation” doesn’t prohibit private property rights.

The Outer Space Treaty was designed to prevent the winner of the 1960s space race from claiming the Moon for itself.
The United States and the Soviet Union were each worried about what would happen if the other nation beat it there. They were thinking of missile bases and territorial disputes, not mines or lunar tourist resorts. The “celestial bodies” language was added by way of expansiveness, but the Outer Space Treaty doesn’t define the term, except to make it clear
that the Moon is one.

An agreement called the 1979 Moon Treaty did try to outlaw private property on the Moon and beyond, but no spacefaring power signed on, and it’s generally considered a failure. It certainly wouldn’t bind any American – or Chinese or Russian – company that headed for space.

So are asteroids celestial bodies like the Moon? Or something different? A number of space-law scholars have weighed in
recently. The bottom-line argument is, as Andrew Tingkang noted in a Seattle University Law Review article, that if you
can move it, it isn’t a celestial body.

We see a similar distinction on Earth between “real” and “personal” property. Real estate is land. One of its chief characteristics is that it stays put. Personal property can be huge – for example, a supertanker or a 747 – but it’s movable. The rules relating to real property are different, and usually more stringent, than the rules relating to personal property. Land is accounted for by deeds and registries; for personal property, possession is enough to establish a presumption of ownership.

The biggest asteroids, such as Ceres or Vesta, are probably too big to move, so even though they’re smaller than the Moon, they might count as celestial bodies. But a 100-metre class-M asteroid is readily movable. It’s not real estate; it’s just a rock.

This seems right to me, but it’s not the end of legal issues for potential asteroid miners. Those who move  asteroids have a duty, both under the Outer Space Treaty and by common sense, to exercise great care to ensure that the rocks don’t go astray. A 100-metre asteroid would probably burn up before striking the surface of Earth, but some pieces might survive, and the risks climb exponentially as the asteroids get bigger. There’s also a duty to prevent so-called back-contamination of Earth with dangerous extraterrestrial matter: microbes and the like.

That’s not a huge risk – after all, asteroids strike Earth regularly without spreading Andromeda Strain-like plagues – but it is nonetheless one worth keeping in mind. Some carbonaceous chondrites – and, even more likely, comets, should we
start capturing those – have chemistry that might allow for life. It isn’t likely, and it’s even less likely that such life, adapted to space, would turn out to be a threat here on Earth. Still, we shouldn’t take chances. We have enough trouble with invasive species as it is.

There’s also a question about what it takes to claim an asteroid. Would a company that sent a robot to a likely rock, assayed it, and then left a transponder or a radar re ector to mark it for easy retrieval, establish a property  right to that asteroid? The answer to this question is probably yes – similar claims involving robots have been upheld in underwater-salvage cases – but at this point it’s not entirely clear.

Going forward, there are two ways this kind of thing can shake out. One is that nations – or at least one nation – will promulgate a set of rules governing claims and exploitation. Another is that companies will just proceed on their own, hoping that few conflicts arise – a good bet, considering that it’s a big solar system with lots of asteroids  available.

This Wild West approach may work just fine, at least for the  first decade or two. And after that, the issues may be clear
enough for lawmakers to catch up and offer something constructive. For now, there don’t appear to be insuperable legal barriers to anyone who wants to tag and bag an asteroid. Let the space gold rush begin!


PM contributing editor, Instpundit blogger and University of Tennessee law professor Glenn Harlan Reynolds is the author (with Robert P Merges) of Outer Space: Problems of Law and Policy (Westview Press).

Video: Learn about Planetary Resources and its plans to mine near-Earth asteroids


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