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.