Asteroid mining plans reveal legal black hole


May 5th, 2012

Lincoln, NE – Planetary Resources raised eyebrows when it announced an ambitious plan to mine asteroids for natural resources. The Seattle company plans to mine near-earth asteroids for water and rare minerals. While that raises obvious technical questions about sending mining robots into outer space, it also raises legal questions about who owns asteroids and any connected resources.

Legal experts were thinking about those issues even before Planetary Resources’ recent announcement – including Frans von der Dunk, professor of space law at the University of Nebraska-Lincoln. Von der Dunk told Grant Gerlock of NET News that the idea of asteroid mining falls in a legal black hole.

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GRANT GERLOCK, NET NEWS: Who owns an asteroid? Is it kind of first-come, first-served?

Planetary Resources said thousands of asteroids are within reach from the earth and could be a supply of iron, nickel and platinum. (Photo courtesy Planetary Resources)

FRANS VON DER DUNK, UNL: Well, that is precisely the problem. In the mid-1960s when the superpowers agreed upon the basic regime for outer space, they agreed outer space could not be appropriated by any state, including celestial bodies – the moon, asteroids, planets or whatever. Just to give you a clear example, the fact that Neil Armstrong and Buzz Aldrin planted the flag on the moon in 1969 did not mean, and could never mean, that the moon became national territory of the United States.

And in that sense, there is a legal void, because in the absence of any territorial sovereignty, it is not clear which private property rights regime would apply because there is no such thing as an international property rights regime yet.

GERLOCK: So there is no law that would specifically prohibit a company from going out and mining an asteroid, but there are laws that say the United States cannot claim an asteroid for itself?

Frans von der Dunk, Harvey & Susan Perlman Alumni Professor of Space Law at the University of Nebraska-Lincoln. (Photo courtesy of UNL)

VON DER DUNK: Right. But in view of the vagueness and the general ideas behind the original clauses, many space lawyers would argue that that still does not provide a right for private entrepreneurs to go out there and mine. So even though strictly speaking, looking at the letter of the law, there is nothing that would prohibit that, it would already become seriously challenged when someone would go ahead.

GERLOCK: What can you compare this to on earth? Is this like oil exploration in the Arctic or fishing in international waters? Is there any comparison to something that exists?

VON DER DUNK: The best comparison is actually the mining of the deep sea bed underneath the high seas, which is similar to outer space. The ocean floor cannot be part of the sovereign territory of any individual state. Now, it is generally accepted that individual states, like the United States, can license operators to go and mine the deep sea bed. So you could envisage a similar development. But then you need the same type of international understanding that if the United States would license Planetary Resources to do that, the other states in the world are generally acknowledging this is a proper thing to do, and they rest assured that through the license it would be guaranteed that Planetary Resources does not violate a certain set of international rules applicable to outer space activities.

GERLOCK: How far do the laws of space currently reach?

VON DER DUNK: In one sense, to infinity. But if you look at the various space treaties, in some respects the text thereof clearly limits itself to the solar system, which is big enough as it is. So that brings me to the reality that, of course, since law only targets human activities, in practice it only goes as far as man is active. Which means essentially so far that it does not go much farther than the moon and a few asteroids in the same area, simply because mankind’s capacity to do something farther away from Earth than that is marginal, if even that.

GERLOCK: The United States is the only country that’s landed on the moon. Does that give us any privileges because we have actually been there? We have also sent rovers to Mars. Can we make any claims to Martian real estate?

VON DER DUNK: No; Mars is the same rule, same legal status as the Moon and other celestial bodies from the legal perspective. They’re all equal. Even the fact that they were the first and only ones who did manned landings does not give the United States a legally preferential right. And in that sense, it was also made clear by the U.S. astronauts that they came in peace for all mankind. But to give you a very clear example, all the moon stones and moon rocks and knowledge that they brought back from the various Apollo expeditions, even though we were talking about a period of the Cold War, those rocks and information were shared with scientists from all over the world, including the Soviets. To that extent, the activities of the U.S. astronauts on the Moon were clearly seen as requiring to be shared with the rest of humanity and not giving the U.S. any privilege in terms of superior scientific knowledge, let alone the possibility to actually claim parts of the moon or Mars if you talk about rovers.

GERLOCK: I don’t know if this compares to mining, but if I somehow manage to bring a rock back from the moon, would I be able to sell it on eBay?

VON DER DUNK: No, technically not. But having said that, of course, that’s precisely what happened with many moon rocks in 1969 and the early 1970s from the Apollo missions. And they were sort of silently acknowledged by the rest of the world to be NASA property, not private property, but NASA property on the condition that, indeed, it was made publicly available, and not to be sold. In that sense, it’s perhaps like part of the Acropolis which, nowadays, it is not acceptable that somebody can own it in private if he is not made subject to requirements to share all this with the public. (California woman detained in attempt to sell $1.7 million moon rock)

In law there is this concept of acknowledgement, silent by consent, which could in theory operate to allow either you as a person or, in the future, Plantetary Resources as a company, to sort of get away with it in spite of an unclear legal situation. But obviously again, on the flip side, if there is an outcry that this is not supposed to happen, that nobody can commercially benefit from something that comes from the global commons, then you have a problem on your hands.

GERLOCK: This announcement from Planetary Resources, it seems, has really exposed some unresolved issues when it comes to space law.

VON DER DUNK: Exactly.

GERLOCK: How far behind are lawmakers compared to where space travel technology is headed?

VON DER DUNK: We are always a bit behind the curve. I think that is to a large extent inherent in the law. On the other hand, if we specifically look to Planetary Resources, my impression is it will be a few years before they are actually ready to single out an asteroid and actually go there. So far, to my knowledge, only once in history has it been possible for a space probe to land on an asteroid. It was a Japanese governmental operation of a few years ago. The technology still has to be worked out, has to be tested. Further analysis has to be done on what asteroid would provide the most likely target. So I think we still do have a few years. But at the same time, lawmakers also take their time. If we want to come to some sort of international agreement, I think the time to start developing that is now.

5 Responses

  1. Rob Pecchenino says:

    Its more of Common sence, Than LAW,… Mans LAW of this earth ends at the point of the last layer of atmosphere upon entering space. When you are in Space unless you are VIOLATING SOME ALIENS Territory that we would NOT be aware off, it seems to me it would be FREE for the grabbing. Like the GREAT LAND GRAB in americas past history. Earthly Governments of humanity does NOT have the ARRAGANT AUTHORITY over anything in space. But when it comes to MEN & MONEY Governments & KINGS have to get their 2 cents worth out of it or there is hell to pay!

  2. Steve Bell says:

    What a fabulous piece. As one who so often sees lawyers focused squarely on the past, I am amazed and impressed that some have their eyes so squarely on the horizon…..literally.

  3. Joe Hardy says:

    The most straight-forward analysis I’ve seen on this topic- thank you! Doesn’t the Outer Space Treaty also require that party states like the U.S. assure that their non-governmental entities act in conformity with the treaty? So that if the U.S. can’t claim an asteroid for itself, neither can a private company?

    And this may be getting too technical, but to me, “appropriate” means a lot more than claiming ownership- just holding possession or use to the exclusion of others. Pulling resources out of an asteroid to sell for your own profit seems to fit that without even going to the history or background of the treaty. (especially with the treaty language of non-appropriation by “use or occupation, or any other means”.

    Still, I’m betting on the “catch me if you can” idea mentioned above. Who’s going to try to stop a company this well-healed? Instead, I think they will be cheered for their pioneering entrepreneurship and contribution to the jobs market, the global commons idea of the space treaty will be quietly brushed aside as a cute idea but impractical given economic realities, until one day in the distant future they become the “big oil” of space, and people ask how did that happen?

  4. Johnnie Chicago says:

    New territories do not automatically fall under human laws until someone goes there and claims them. I would imagine that no one company could claim an entire body just by landing, but if a colony becomes established, then setting up laws for that sphere of influence would be the responsibility of those inhabitants.

  5. Nocturnal Lunacy says:

    Who cares? Why is it “man” has to have ownership and laws pertaining to space?
    Its like what was said above, big Government has to have their share of the money. If the Planetary company only said they were going to explore an asteroid then there would be no talk of laws or ownership.
    And by the way Rob Pecchenino, in case you didn’t know or somebody lied to you, the “great land grab” as you put it was illegal as the land that was “grabbed” was illegally seized by the United States from the Natives. And therfore all that land that was “grabbed” was actually stolen just like everything else the U.S. wants.

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