Is Asteroid Mining Legal?
Over at Wired, Jim Dunstan and Berin Szoka (who have previously disagreed with my take on space property rights under the OST) discuss the issue:
Under any definition of ownership, the United States clearly owns the Apollo lunar samples. Any entity that can claim something as an exclusive resource, control its transport and distribution, and can exchange it for something else of value (in this case, other lunar samples), clearly owns that object. Russian lunar samples have been re-sold by private individuals, establishing that portions of a celestial body can be subject to ownership if they are removed from that celestial body — whether by governments or private parties — even if the celestial bodies themselves are not subject to appropriation.
This is the single most important legal precedent property rights in space, and should provide great comfort to those who wish to exploit the resources of outer space. It is also consistent with many commentators, who allege that the Outer Space Treaty’s prohibition on “appropriation” relates only to entire celestial bodies as they exist “in nature,” and that both individuals and nations can claim ownership of resources extracted from celestial bodies. The only real question, then, is the extent of this ownership: Can an entire asteroid be claimed if it is being mined?
Under the Outer Space Treaty, if a company is mining an asteroid, no other entity could come along and start mining on the other side if doing so could interfere with the first set of miners. If the asteroid were large enough to accommodate two independent mining operations, both could likely proceed, each gaining ownership of whatever material they extract. Thus, customary international law already gives would-be asteroid miners a sound basis for their business model.
But what if a mining company captured an asteroid, changing its orbit to bring it closer to Earth and thus make return of extracted materials easier? Would the entire asteroid belong to the mining company because the asteroid, as a whole, was “extracted” from its “natural” orbit — becoming more like a single rock or an artificial satellite than a moon or a planet?
The latter seems to be what Planetary Resources proposed last week. The issue is, if a body is moved by human action, is it any longer a “celestial body” under either the Outer Space Treaty or the Moon Treaty, or has it become a large sample retrieval? The issue is complicated by the fact that any mining activity that, by definition, involves removing portions of it, will almost inevitably change its orbit, per Sir Isaac’s Second Law of Motion. I say “almost” because in theory it would be possible to remove it by pulling it away with an external rocket, rather than reacting against the main body, but there would be no reason to take such measures, unless purely a legal one.
And note that this would apply even to the moon — removing (say) water from ice at the poles and using it in a rocket to deliver material to lunar or other orbit would theoretically change its orbit around the earth, even if immeasurably. But surely no one would agree that the U.S. owns the moon because we pushed it a little bit with the Apollo ascent stages or slammed an upper stage into it to determine whether or not it had water.
So how much would the orbit need to be changed in order to make a claim on the whole body (assuming that a new orbit allowed such a claim under customary law)? Clearly, moving it from an earth-crossing heliocentric orbit (the proposed location of the Planetary Resources’ initial prospecting targets) to an orbit around the earth would be an indisputable new location. But what if only a few meters per second change of velocity were imparted as a result of the mining operations? Technically, it would now be in a new, artificial orbit, but it would be trivially different than the natural one. What would be the criteria by which a new orbit was declared? Would they be qualitative (e.g., orbiting a new body) and/or quantitative (minimum of X meters per second)? One way of deciding the question would be if the change was deliberate (e.g., attaching a rocket, or a electric mass driver that catapulted asteroidal material to change the momentum, with a prior notification of intent for new orbit) versus inadvertent (routine mining operations with no stated intent for orbit change).
Of course, asteroid ownership is a dual-edged sword. With power to move great objects comes great responsibility. Under the 1972 Liability Convention to the Outer Space Treaty, a company that moved an asteroid to the vicinity of earth, or even changed its orbit so that it eventually plowed into it, would be liable for the damage, which means that the U.S. as “the States Party” under which Planetary Resources would operate would have to regulate it. There is currently no legislation allowing the U.S. to do so, other than having to satisfy the State Department that there are no problems, in order for the FAA to issue a launch license. As they get closer to actually demonstrating such a capability, it’s likely that such legislation will be drafted and passed, to keep the country in treaty compliance (just as the Commercial Space Launch Act was passed in 2004 to allow the FAA to license commercial launch).
In any event, no one knows what the legal requirements and responsibilities are for now, and no one will until it is tested in a court of law, either federal or international. And in the absence of such knowledge, the company (and its competitors) operate in an area of legal uncertainty. For now, though, it doesn’t seem to be slowing them down.
Hmm…lawyers in search on a new cause of action. “Forget national. We’ve discovered our writ runs far beyond the orbits of Earth and the inner planets; our new branch office now protects you beyond the galaxy. Because we say so. Sign here. Then cough.”
No thanks. Starting point: Take what you want/need and blow up anyone who tries to stop you. The approach will be familiar to any card-carrying ‘progressive’.
BINGO!!! Now that technology has offered a way to mine rocks hurtling through space, the government will need to find a way to tax such operations. Landing on an asteroid isn’t difficult enough without 60 million miles of red tape to go along with those traveled to get to work. Bureaucracy, crushing dreams since the beginning of history. First, decide which U.N. based, international tribunal has dominion over rocks in space and, then, take any incentive for people to harvest any resources that may exist on them. And these parasites want us to thank them for doing it.
Under traditional (i.e., Lockean) conceptions of property acquisition, “the gathering” — i.e., the deliberate detachment of the previously unowned item from “the common” — is sufficient to establish ownership…but only if that item remains in an “improved” condition. In the case of an asteroid moved from heliocentric to geocentric orbit, the moving agency would be required to display adequate control over the asteroid, including the ability to prevent the thing’s orbit from deteriorating at a rate dangerously greater than the rate at which its mass is being extracted.
(This concept was once expressed thus: “An owner has to act like an owner.” You cannot plausibly maintain that the ’64 Chevy Caprice you left parked on the side of the Cross Bronx Expressway six months ago and haven’t bothered about since is still your property in any defensible sense. The urban entrepreneurs who harvested its wheels, radio, and so forth were acting on an item you’d implicitly “returned to the common.”)
Should the moving agency’s control of the asteroid lapse in an unambiguous fashion and for an admittedly arbitrary interval (in the case of land, I believe it’s seven years, though we wouldn’t want to wait that long in the case of a falling asteroid), it would “return to the common.” Anyone else who could demonstrate control over it could make a plausible claim of new ownership. Failing that, the original movers would have a good natural-rights title, and full responsibility for whatever might ensue from their actions.
Of course, we can’t expect governments to see things the same way…but a company with the power to move an asteroid tens of millions of miles and insert it into a stable geocentric orbit would have some rather persuasive counter-arguments in hand, no?
Well, not exactly, in fact it sounds like special pleading. In an earthbound world, most would now say Locke takes over from Hobbes. But we’re talking outer space, not Earth, and not just the final frontier but (as far as we know) the ultimate untouched state of nature. Hobbes ruled there and many would say he still does.
Locke certainly met Hobbes more than half way, since he knew full well that in a state of nature, where life is ‘nasty, brutish and short’ (Hobbes), everyone had a natural right to defend his ‘life, health, liberty, or possessions’ (Locke; and the basis for the phrase familiar to nearly all).
More directly, Locke’s biggest legacy — notions of the social contract — has nothing to do with deep space. Plus, like many lawyers, it’s unlikely Locke could tell an asteroid from a hemorrhoid.
Oh, come on:
1. Define “special pleading” as you believe it applies to the Lockean argument. Tossing out a high-sounding phrase without justifying its application is intellectual default. Do you even understand what a “special pleading” is?
2. Why would Lockean homesteading be inapplicable to off-Earth items? Just because Locke never conceived of venturing into space?
3. Defense only enters into the equation if one is attacked, or his property is seized. Property rights have far wider implications than that They begin with the privilege of exclusion, but they reach all the way to derived ownership in items made from (and sometimes with) the thing owned.
4. The social contract — which, as a friend of mine likes to say, isn’t worth the paper it’s not written on — is a conception that arises from the not-entirely-voluntary sharing of a spatially demarcated resource with others in more or less the same condition. He who brings an asteroid out of the Belt and into a geocentric orbit starts out with uncontested occupancy and possession of said asteroid; notions of society, and therefore of the “social contract,” are about as applicable as pantyhose to a manatee — a male manatee. Even in the event of a physical contest with an invader, the concept of a “social contract” fails to arise; then you have a clear case of the right to defend what you’ve homesteaded, nothing more.
Do try to make more sense next time. A grasp of Locke’s concept of “mixing one’s labor with the land” would help. Reading the post you’re supposedly replying to would help even more.
uh?
So, is Hugo Chavez right and acting by Right by expropriating privately-owned lands just because they were unproductive?
No, because if that same Chevy owner had left the car for six months on land he owned, the argument would no longer apply. It is not the activity of an owner to leave such property in a public area for months at a time; doing so in a storage garage that he hired for the purpose would be an activity of ownership.
The issue here is that firstly it is Chavez’s own policies that are causing resources to remain unused and goods unsold and men unemployed. Secondly, saying that the land was “unproductive” is an evaluative statement, much like Obama claiming the Senate was not in session because they weren’t doing anything important. If there was a Venezuelan statute requiring a certain minimum level of activity on private land in order for it to be recognized as private, then any owner who maintains that minimum level is not to be interfered with on the basis that there is some superior use for his land.
I’m waiting for the environmental movement to start protesting such activity.
so what? we’re out of the space game, remember?
The government may be out of the space game but private enterprise is just now getting INTO the space game.
Not to worry.
Once money starts changing hands in copious quantities that which was previously illegal will become a boon the mankind.
Launch the Nestromo
Legalities aside, the practicality is this: Anyone who can control an asset outside the territories of a country owns it. Those who can’t, don’t.
A captain of a ship is effectively dictator until the ship is at port. Likewise, those who mine an asteroid are the owners. The treaties can discuss philosophies, understandings and the like, but unless there is a force to back it up, it is just another piece of paper.
No peace above the atmosphere!
Miners better remember to pack their missiles, railguns, and lasers. If they actually show a possibility of profit, expect nations and the UN to try to step in and extort them. They should meet an appropriately “warm” reception…
To me the most significant legality which this article totally ignores is the inevitable attempt by the UN to grab a share of the profits once space mining becomes viable. Case in point, we know of large deposits of valuable minerals deep on the ocean floor, we have the technology to harvest them at considerable expense, yet attempts to start such a venture die stillborn due to the risk imposed by the threat of the avaricious UN stepping in to claim the lion’s share of the wealth “for the people.”
Is Asteroid Mining Legal?
I hereby stake my claim of ownership to all planets, stars, asteroids, meteors, black holes and all other solid, liquid & gaseous matter of the universe above the earth. Appropriate documents for doing so are on file with the Intergalactic Claims Office. Therefore, permission for asteroid mining must go through me . . . . . and, of course, appropriate royalties paid.
You forgot plasma, dark matter and dark energy to which I hereby claim and file for official ownership.
Claims of ownership of previously unowned property require a demonstration of ownership claim.
This is why Jefferson argued in 1774 that the New World settlers should not have had to pay for lands in the Americas, because the British crown had never sent anyone under its own funds to find and claim those lands. He said that they had done the entire work, from the discovery and claiming to the development all on their own, without any input from the Crown, and thus the Crown had no title to those lands. He explicitly agreed that if the Crown had sent troops to find and claim the land, it would be owed money by settlers who wanted to settle upon it, because such would actually be a sale from the Crown to the settler.
In this case, asteroids have never been owned, so in order to claim one you would have to go there and plant your stakes; you could also send a machine of your making or purchase to do so.
Remember the old dream of finding Pirate treasure or sunken ships carrying tons of gold and silver or the lost El Dorado gold mine. What good would it do you now? How much of it would you think you would be allowed to keep? Wasn’t there a sunken ship from the 16th or 17th century found recently by a private company that was determined by a “court of law” to still belong to the Spanish government? I wonder how much the company got as a finders fee?
Rock This Town just laid claim to all the galaxy, do you think even if he had it legally recorded it would be allowed to stand? Someone else mentioned the UN. Even if a company found a way to economically mine the moon or an asteroid the UN would step in and counter claim for the “good of mankind” and try to claim it all for themselves. Here RTT, here’s a dollar, go try to find someplace that will sell you a cup of coffee for your claims paper.
The idea of a planet-bound government issuing orders to the asteroid belt is to ridiculous to contemplate.
“Yeah? Or WHAT?”
Looks like everyone’s opinions are shifting. Moon Express was making pro-mining noises last week. But then earlier this week they started to lay off some of their engineers and told the remaining employees that this hardware company is now a software company and that their new product is something that names moon craters.
I think the US already has a precedent that could cover the situation.
Remember the “land rushes” of the late 1800s? People could claim land in the rush, but to keep it they had to improve it. The Territorial Courts ruled that improvement had to be “clear, unambiguous and substantial” to qualify – minor alterations didn’t count.
Now, I don’t think this was ever tested in higher courts, but neither was it struck down. And there’s no time limit on precedent.
Send the entire EPA to asteroids to do environmental studies.
And so it goes. The Russians and Chinese, knowing that they could never compete with the US in the space race, have deployed their most fearsome weapon against the American space craft. So powerful were these weapons that not only could they disable a single rocket readied on the pad, effectively rendering it useless, but the discharge of the ordinance would completely end the US space program in an instant. They covertly transported the weapon aboard a commercial airliner and set it off…
The sent a lawyer.
I actually had this idea last year with regards to the asteroid that will be passing by the Earth in 2024. I’m a little amazed that not only did someone else have the same idea, but also had the balls to do something with it.
While any sort of space mining is likely years in the future, if ever, we are Johnny on the spot with lawyers and government to regulate it. Since we have been so successful in lawmaking and litigation, an expansion of that authority is needed?As all and sundry governments and highly efficient, rational organizations have corrupted the rule of law internationally, restricted enterprise with regulations both draconian and idiotic, we must now delve into the final frontier with even more uneforceable, self defeating bureaucracy? Beam me up Scotty, there’s no intelligent life here.
If technology is developed and perfected to move asteroids for the purposes of mining them; or as a result of mining them. How long until someone figures out how to move asteroids for the purpose of smashing them into Earth?
About 15 minutes.
There is no law in Outer Space. There is a UN sponsored Outer Space Treaty, 1968 I think. But it is only a treaty and therefore only applies to signatory states, at their convenience.
I agree.
I don’t believe that the OST was ratified by the Senate as the Constitution requires in order for it to become law in the United States. If it wasn’t, then people in the U.N., the WWE, the Sierra Club and the American Bar Association can pass resolutions and statements of position etc about anything they like until the cows come home and they don’t mean anything, legally. As a practical matter, for instance, anyone who settles in Luna isn’t going to be impressed by any treaty signed by earth-bound nations one iota. The people who will be going up there and working etc are not going to hold themselves to agreements made between and among those honest, peace-loving, truthful folks who lead the world’s nations. There isn’t an honest politician to be found anywhere on the globe and their greed and indifference to the rights and needs of ordinary people are well-known. Don’t believe me? Ask the Ukraine Cossacks and kulaks how many of them were killed to enforce collective farming. Ask the Chinese how many died in the so-called “Great Leap Forward”. Total those up – just those don’t count any others – and you’ll get a total in excess of 100 million. Significance? Anyone who has the guts to live off the earth isn’t going to stand for politicians trying to blackmail and rob them out there.
The OST was ratified by the U.S. in 1967. You’re probably thinking of the Moon Treaty of 1979.
Yeah. Nobody ratified that piece of slime.
Actually, several countries did, but none of them are space faring.
Is this what the Atlanteans did and got themselves and their city destroyed?
Seems to me, that just as in the old days, whoever plants their country’s flag first, claims ownership of that asteroid. I guess that means that the good old United States of America, owns the moon.
This article on the legality of Astro minig relates to the homestead principle. )John Locke, Murray Rothbard)
Astro mining however is legal because it concerns material only that is completely consumed. Asteroid mining is to be viewed as space fishery. 2nd. There are infinite asteroids.