Who owns space? US asteroid-mining act is dangerous and potentially illegal

November 25, 2015 by Gbenga Oduntan, The Conversation
Nope, a flag is not enough to make the moon a colony. Credit: NASA/wikimedia

An event of cosmic proportions occurred on November 18 when the US congress passed the Space Act of 2015 into law. The legislation will give US space firms the rights to own and sell natural resources they mine from bodies in space, including asteroids.

Although the act, passed with bipartisan support, still requires President Obama's signature, it is already the most significant salvo that has been fired in the ideological battle over ownership of the cosmos. It goes against a number of treaties and international customary law which already apply to the entire universe.

The new law is nothing but a classic rendition of the "he who dares wins" philosophy of the Wild West. The act will also allow the private sector to make space innovations without regulatory oversight during an eight-year period and protect spaceflight participants from financial ruin. Surely, this will see private firms begin to incorporate the mining of asteroids into their investment plans.

Supporters argue that the US Space Act is a bold statement that finally sets private spaceflight free from the heavy regulation of the US government. The misdiagnosis begins here. Space exploration is a universal activity and therefore requires international regulation.

The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbriddled commercial exploitation of outer-space resources. These principles are found in agreements including the Outer Space Treaty of 1967 and the Moon Agreement of 1979.

The US House Committee on Science, Space and Technology denies there is anything in the act which violates the US's international obligations. According to this body, the right to extract and use resources from celestial bodies "is affirmed by State practice and by the US State Department in Congressional testimony and written correspondence".

Ever since NASA discovered signs of liquid water on Mars, concerns have been raised about the risk of contaminating the red planet. Credit: NASA, ESA, and The Hubble Heritage Team

Crucially, there is no specific reference to international law in this statement. Simply relying on US legislation and policy statements to justify the plans is obviously insufficient.

So what's at stake? We can assume that the list of states that have access to outer space – currently a dozen or so – will grow. These states may also shortly respond with mining programmes of their own. That means that the pristine conditions of the cradle of nature from which our own Earth was born may become irrevocably altered forever – making it harder to trace how we came into being. Similarly, if we started contaminating with microbes from Earth, it could ruin our chances of ever finding alien life there.

Mining minerals in space could also damage the environment around the Earth and eventually lead to conflict over resources. Indeed what right has the second highest polluter of the Earth's environment got to proceed with some of the same corporations in a bid to plunder outer space?

While we're not there yet, developments towards actual space mining may begin to occur within a decade.

The International Space Station. Credit: WikiImages/pixabay

A province of all mankind

Ultimately, the US plans must be understood in the light of existing rules of space law. Money is not a dirty word in space – the total value of the satellite telecommunications industry in 2013 was more than $195bn. Free market principles also apply to the operations of the International Space Station. So, let's get down to the nitty-gritty.

Currently corporations can exploit outer space in a number of ways, including for space tourism and scientific training. Companies may also be allowed to extract certain resources, but the very first provision of the Outer Space Treaty (1967), to which the US is a signatory, is that such exploration and use shall be carried out for the benefit and in the interests of all countries. This therefore prevents the sale of space-based minerals for profit. The treaty also states that shall be the "province of all mankind … and that states shall avoid harmful contamination of space".

Meanwhile, the Moon Agreement (1979) has in effect forbidden states to conduct commercial mining on planets and asteroids until there is an international regime for such exploitation. While the US has refused to sign up to this, it is binding as customary international law.

The idea that American companies can on the basis of domestic laws alone systematically exploit mineral resources in , despite huge environmental risks, really amounts to the audacity of greed. The Romans had this all correctly figured out in their legal maxim: "What concerns all must be decided upon by all."

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5 / 5 (5) Nov 25, 2015
IMHO, if the exploration of Earth by our distant ancestors had been governed by a similar restrictive set of laws/treaties, there may not be a United States, nor a European Union. In fact, there is no telling what kind of abbreviated form of civilization would exist today if the only ventures allowed outside of already established countries were tourism and research (no colonization, mining, trade, etc.).
3.7 / 5 (7) Nov 25, 2015
Gbenga Oduntan, space is going to be developed whether you like it or not and nothing you do or say will stop it. The amount of capital investment required to mine resources in space profitably will keep it out of reach for a very long time, but eventually it will be necessary in order to support a space faring civilization. Humanity will colonize space and will contaminate the environments they find. Get over it. Humanity isn't going to remain stuck on this rock forever and we sure as hell aren't going to walk on eggshells worrying about whether we contaminate asteroids and other planets with Earth microbes. Frankly, I don't care all that much about whether or not there's other life out there. If there isn't, then we're bringing some with us when we go. Chances are, we'll destroy some life in the process. Oh well. I'm not going to cry about it.
5 / 5 (5) Nov 25, 2015
It is a pity that someone with so little knowledge of either space law or entrepreneurial law was chosen to write this opinion piece.
To start with, he refers to the 1979 "moon treaty" as "binding as customary international law." What? The "moon treaty" doesn't have any binding authority; in fact, not only did the US not sign it, NONE of the countries that have launched humans into space or announced plans to do so signed it. It is "binding" only on the sixteen countries that signed it.The fact that Oduntan doesn't even understand that a proposed treaty that has not been signed nor ratified isn't "binding" makes the rest of the irrelevant stuff he says meaningless.
Space Warrior
5 / 5 (3) Nov 25, 2015
Not sure where to begin, but this article was not well researched at all, and is frankly quite misleading. Although I understand the need to write interesting articles, the author's statement that passage of HR2262 is a "salvo that has been fired in the ideological battle over ownership of the cosmos" is a ridiculous hyperbole. If the author took time to read Title IV of the new law, it allows for commercial entities to own ONLY the obtained materials (personal property) from asteroids and other celestial bodies, but specifically and explicitly states that this law does not allow anyone or any entity to claim sovereignty or ownership over the celestial body (real property). This law does NOT enable "ownership over the cosmos" as the author wrongly leads the readers to believe. Is the author an attorney, and if so, why isn't he reporting about it correctly and instead making this an inflammatory piece based on false allegations? There much more to write about how bad this article is.
Lex Talonis
5 / 5 (1) Nov 25, 2015
What about space zombies?

They have boldly gone before where only space zombies have gone before, again.
Lex Talonis
5 / 5 (3) Nov 25, 2015
Why is this article written by a retard?

Seriously - you could qualify for a side show circus, the novelty act of talking out your arse.

3 / 5 (2) Nov 25, 2015
I think ownership of celestial bodies is by those with the biggest guns!!!

Let's face it, if a company is mining an asteroid, then according to this law they OWN the stuff they have dug out. So what happens when company B turns up, can they just start mining too, right next to company A??? Sure they can. But greed will say otherwise!!! Companies will seek to protect their rights.
4.3 / 5 (6) Nov 29, 2015
Fascism is rule by the corporations, for the corporations. Corporate socialism.
So what we have here is Cosmic Fascism.

The old imperialists made claims and divvied up property that was not theirs to do so. Let's stop that horror show right now.
5 / 5 (1) Nov 29, 2015
The sooner we get out there and start the better. This article sounds like foot dragging in principle.

Also, even if the US were to be in violation of a treaty that it did not sign (absurd), the only ones with moral standing to complain about it would be the other signatories. If none of them have a problem with it then you certainly have no standing to bring complaint.
not rated yet Nov 29, 2015
I don't see problems hauling things from space back to earth, but there are sure problems of contamination when we talk about going to other planets, if we are not careful, we might contaminate others planets. It's a good law to prohibit any space exploration which envisions monetary gains, but it doesn't work very well. As everything we seem to make with the same effort on earth, like the UN. And at the same time, it kinds of hinders progress of technology if we don't open the space...

So my ultimate opinion is, we should let it, because we can't stop it, but we should take care with it.
not rated yet Nov 29, 2015
There have been a lot of shoddy propaganda pieces from "The Conversation" re-posed here on phys.org of late. I haven't seen any from this source that are factual,unbiased and relevant for a science news site.
Manfred Particleboard
not rated yet Nov 30, 2015
Passing legislation (Americocentric) will be more or less useless. Most countries will probably do what the Japanese do in Antarctic waters when it comes to fishing sovereign waters, they simply refuse to recognise the claim. I hope laser blasters will be invented soon and I can live my sci fi fantasy of becoming a rugged asteroid miner working under hostile political considerations. Where disputes are settled by laser fire....

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