The space industry is experiencing a surge of activity that is making headlines. Elon Musk’s SpaceX was the first private entity to send a spacecraft into orbit, and is also one of the two private firms being paid by NASA to deliver supplies to the International Space Station under the Commercial Resupply Services program. Virgin Galactic is planning on flying paying passengers to the edge of space as a form of space tourism. Companies like Planetary Resources are working to mine asteroids and sell the resulting minerals. All of these companies are examples of the new wave of private activity in an industry that has been dominated by governments and major defense contractors.
Of the new ventures in space, mining an asteroid is both the most technically difficult, and most potentially lucrative. Estimates of the amounts of minerals found on an asteroid vary, but valuations as high as 20 trillion dollars for at least one asteroid have been released. Even extracting water from an asteroid can be valuable in space; it costs almost $18,000 to launch a gallon of water into orbit from the Earth.1 NASA is also interested in claiming asteroids; it wants to capture a small asteroid, or part of one, and put it into orbit around the Moon by the end of the decade as a test-bed for its Mars program. While there are large technical challenges to overcome before asteroid mining becomes the next big thing, asteroid miners may also have to clear legal hurdles before they can launch their first mining expedition.
The problem of what law applies to objects in space has been an issue since the launch of the first artificial satellite, Sputnik 1, in 1957. Treating outer space above a country as part of its airspace, and thus part of its territory, is not feasible because of the physics of satellite orbits.2 This problem has been addressed through a series of international treaties; the original and most significant is the Outer Space Treaty of 1967.3 The Outer Space Treaty was adopted at the height of the Cold War, and it was aimed at preventing the opening of a new frontier for military and national expansion. The Treaty states that space shall be free for the exploration and use of all nations, limits the use of space to peaceful purposes, and prohibits any national claims on any celestial body.4 This last statement, prohibiting the establishment of national claims to any celestial bodies, is the most relevant in the Treaty for the purposes of asteroid mining. At the height of the Cold War, this language, found in Article II of the Treaty, played a pivotal role in securing the peaceful nature of space exploration. But it raises an important question: will asteroid miners be allowed to claim an asteroid and set up a business mining it?
The language of the article states that space is “not subject to claims of national appropriation by claims of sovereignty, by means of use or occupation, or by any other means.”5 The article does not mention private entities, or claims made to resources by them. In addition, mining in space likely qualifies as an example of peaceful space exploration, which is one of the guiding principles of the treaty. However, there are arguments that cut the other way. Article VI of the Treaty requires that countries ensure compliance with the Treaty by their non-governmental entities operating in space.6 This requirement can be read to mean that even private corporations cannot make claims to objects in space. Furthermore, it is easy to imagine situations where a State-owned corporation, or even just a corporation that is under the influence of the State, lays claim to a large asteroid for mining purposes. Even private corporations, which are under the jurisdiction of their parent country according to Article VIII, could create situations where a large asteroid is operating as an extension of that country. On balance, it seems unlikely that the treaty would ban claims related to asteroid mining by private entities. Asteroid mining is likely a peaceful use of space, which the treaty is meant to promote. Furthermore, corporate activity in space is a long step from welcoming the Moon as the 51st state of the United States.
Another potential legal hurdle is national law. At least in the United States, it seems less likely that future asteroid miners have anything to worry about. The Federal Aviation Administration has an office dedicated to regulating commercial spaceflight and related activities such as testing new rockets. The office has been actively granting licenses to the new wave of private space companies, including issuing the first license authorizing reentry into the atmosphere to a private entity in 2011. Congress has also been active in the field since the passage of the Commercial Space Launch Act in 1984, with amendments to the act coming as recently as 2004.7 In addition to creating the FAA’s office for regulating commercial space activities, the Act also stresses the need to encourage and promote the growth of private commercial space.8 There may still be potential issues with securing a license for an activity that has never been licensed before, especially because of the need for a large number of potentially dangerous launches and reentry events. However, given the record of prior cooperation and assistance, it seems likely that future asteroid miners should be able to avoid major problems with national law.
The legality of asteroid mining may or may not be important going forward. The question is moot if no one challenges the activities, and the legal arguments against asteroid mining are not very strong on their face. On the other hand, investors would be understandably hesitant to invest in enormously costly space ventures if they are not completely sure that they are legal. Future work from lawyers and government officials aimed at answering the question above may go a long way in furthering the private exploration of space.
1 Cost per kg to low earth orbit on a SpaceX Falcon 9 is $4654. http://www.spacex.com/about/capabilities. A gallon of water weighs about 3.8 kg.
2 Satellites travel in fixed paths around the Earth called orbits. A typical low earth orbit lasts about 90 minutes, meaning satellites inevitably cross over many countries multiple times a day. Satellites do not typically carry enough fuel to change their orbit, which means they are unable to maneuver around a country that does not want a satellite flying over its “airspace.”
3 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410 [hereinafter Outer Space Treaty].
5 Id. at art. II.
6 Id. at art VI.
7 Commercial Space Launch Act, 98 Stat. 3055 (1984) (codified as amended at 51 U.S.C. §§ 50901-923 (2012)); Commercial Space Launch Amendments Act of 2004, 118 Stat. 3974.
8 51 U.S.C. § 50901(b) (2012)