Extraterrestrial mining has always been something from the distant future as there are so many issues to be solved before humanity will be able to extract something from space objects. The biggest challenge is to actually make it to the asteroid belt or at least to a single roaming asteroid. Several decades ago it was nearly impossible, several years ago getting to asteroids was doubtful as people hadn’t a spacecraft that had enough thrust to switch between low-Earth orbit and asteroid’s orbit.

The situation changed on February 6th, 2018, when SpaceX launched its Falcon Heavy rocket along with Elon Musk’s Roadster into space. Martin Elvis, an astrophysicist from the Harvard-Smithsonian Center for Astrophysics, estimated that Falcon Heavy increases the number of asteroids that could be landed by the factor of 15.

“Instead of a few hundred, we may have thousands of ore-bearing asteroids available,” Mr. Elvis said at the annual meeting of the American Association for the Advancement of Science held in Austin, Texas.

The extraction of natural resources can solve many problems, at least in theory. It may speed up further space exploration, tech development, and make the colonization of Mars or the Moon a little easier. Still, there are a lot of legal issues to be resolved before companies can proceed with mining operations on asteroids. So, let’s have a closer look at the existing laws and treaties aimed at regulating an asteroid mining industry way before it’s actually appeared.

Asteroid Mining: The Frontier Definitely Needs a Sheriff

Essentially, asteroids are small chunks of a protoplanet that never made it. They consist of various elements, and, depending on the composition, each asteroid loosely falls into one of three categories (even though that’s not the only asteroid classification in existence):

C-type.

S-type.

M-type.

So, what do we actually want from asteroids? First of all, they are large pieces of matter that belong to no one. That matter they are made of might be of little interest to the vast expanse of the universe, but to us down here on earth it actually costs something. A lot, actually.

C-type

C-type is the most common type of asteroids. According to Philip Metzger, the planetary scientist at the University of Central Florida, C-type accounts for about 75% of all asteroids.

Such asteroids are rich in carbon and contain lots of water. At the first glance, they aren’t valuable and, therefore, are not of interest because water is cheap and easily accessible. Yet, it may seem so only because we have lots of water on our pretty little planet. Up there, it’s not the case.

Neil deGrasse Tyson, the famous American astrophysicist and the Director of the Hayden Planetarium, explained it in his interview for CBS:

“What’s valuable in space is not the same thing that valuable down here. For example, what is the value of a gallon of water already in space? That’s different from a gallon of water here on Earth. When NASA needs water it’s gotta whole water up in space with it and at last prices was at least ten thousand dollars a pound! Just for water. So, for example, if you can extract water from one of the asteroids then you have water IN SPACE.”

So, why does NASA need water out there? Well, because there are people are there. With further outer space explorations, there also will be a greater need for water for its mere consumption by humans. What is more impressive, though, is that by breaking water down into liquid hydrogen and oxygen in space, people will be able to create rocket fuel on site.

As Mr. Tyson said, the transportation of water to space is mind-blowingly expensive, so the extraction and further usage of water located on asteroids for refueling and consumption could be a really good project in the long run.

In addition, C-type asteroids may contain phosphorus, nitrogen, and other fertilizers which can be combined with other chemical elements. Such combinations could be used to create reliable ways of food production directly in space.

S-type and M-type

Those types of asteroids have something in common. They are rich in precious and rare metals and the differences between them are the amount of such metals and the purposes they could be used for.

S-type asteroids are silicate or stony asteroids. They are rich in minerals and metals such as silicon, iron, or nickel, although it can have smaller amounts of precious metals like gold and platinum. According to Mr. Metzger, “that could be important if we plan to bring the mined metals back to Earth to sell on the terrestrial metals market.”

M-type asteroids are sort of space El Dorado for all enthusiasts and entrepreneurs. This type contains the larger amounts of gold, silver, nickel, palladium and other rare metals compared to “S-type objects”. M-type asteroids are extremely rare but they would give the most significant financial results for mining companies in case they sell their contents down on Earth.

This might hit the Earth’s precious metals market like, well, an asteroid. The abundance of those metals would devalue their preciousness while, on the other hand, promoting technological advancement in the areas heavily relying on gold or platinum. Still, there’s always an option of building a space factory and doing everything up there.

Notwithstanding the admiration of the asteroid mining and its great potential to reduce the price on precious metals, enhance the economics and technologies, and bring the Greater Good to the Earth, the reality is that all those resources would be in the disposal of private companies. There are no alternatives: they’re working to create decent technologies, and their efforts cost a hell of a lot of money. So, what the regulators think about this commercialization of space objects?

International Regulations and Extraterrestrial Mining

Generally, there aren’t so many laws and treaties regulating space and extraction of the resources out there. Still, several international agreements are doing it for quite a long time. It’s the well-known Outer Space Treaty, which defines common principles for the exploration and usage of outer space; the Registration Convention of 1975, which is a treaty that governs the registration process of all spacecrafts launched to outer space; and the Moon Agreement governing all activities on the Moon and other celestial bodies.

The Outer Space Treaty

Most international laws on space are quite vague as they were adopted almost half a century ago when the people didn’t even think about the real commercial exploration of the outer space and were mostly concerned with the Cold War. The most significant treaty governing the matter is the 1967 U.N. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies more commonly known as the Outer Space Treaty.

Article I of the Treaty states that the exploration and use of outer space should be carried out for the benefit of all countries, and humankind, respectively. When it comes to asteroid mining, there are more questions than answers here. Could asteroid mining be considered a benefit for all countries and the humankind if it’s carried out by private companies that, of course, work for their own profit? What does the term “benefit” actually mean? Should those companies send a part of the resources back to Earth for sale, or the extraction of those resources is already a benefit?

At the same time, Article II prohibits the national appropriation of Moon and other celestial bodies, which includes asteroids, by “claim of sovereignty, by means of use or occupation, or by any other means.” That was done to make space a “global commons”, which can’t be under any nation state’s jurisdiction and is free for exploration by all nations. So, could space be explored and commercialized by private companies? Can such companies mine asteroids and then appropriate extracted resources? If so, under what conditions?

According to Article VI of the Outer Space Treaty, “states shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities.” Thus, the international laws actually allow private companies to mine asteroids and the Moon, but it’s nation states that would be held responsible for their activities. Therefore, private companies have to be subject to “authorization and continuing supervision by the appropriate state.”

States are also liable for all the damage that might be caused by space objects launched from their territory or facility as outlined in Article VII. For example, if a U.S.-registred space vessel of any nature causes damage to something or someone registered elsewhere, it’s Uncle Sam that has to pay the reimbursement.

The last but not least, as set forth in Article IX, nation states should undertake appropriate international consultation if an activity or experiment planned by the state or its entities may harm activities of other states and vice versa. A country may request a consultation if activity planned by another state would cause potentially harmful interference to the country’s activities. That could be the most serious clause regarding asteroid mining as it can obstruct the usage of a specific asteroid by other nation states and companies.

The Registration Convention of 1975

Another act regulating space is 1975 Convention on Registration of Objects Launched into Outer Space or just the Registration Convention of 1975. In fact, it doesn’t regulate any questions regarding the space resources but it can play a significant role in developing the asteroid industry.

The main goal of the aforementioned agreement was to create a special registry of all spaceships, spacecrafts and objects launched into outer space. This register was aimed at defining which state would be liable in case one spacecraft caused damage to another.

Article II required all parties of the Convention to create and appropriately maintain a register of all space objects launched into Earth’s orbit or beyond. Approximately the same should be done by the Secretary-General of the United Nations with one difference: this register would be global, encompassing the information about all launched spacecrafts, according to Article III.

All countries that had signed the convention should provide the U.N. Register with the following information required by Article IV:

Name of launching State or States.

An appropriate designator of the space object or its registration number.

Date and territory or location of launch.

Basic orbital parameters, including: nodal period inclination apogee perigee

General function of the space object.

Also, the Convention provides a requirement for nation states to notify the Secretary-General “whenever a space object launched into earth orbit or beyond is marked with the designator or registration number” (Article IV).

All this means that governments will be directly involved in the activities of private companies. Both the national and international registers, are tools to monitor all spacecrafts launched to outer space. Even though the Convention’s requirements are quite mild, it creates a really vague legal framework to control future activities of asteroid mining companies. Such companies would have to register their mining tools and spaceships in local and international registers. While it doesn’t look like a serious obstacle, it still could be one as governments and various bureaucratic procedures are always involved in the process of registration.

Still, nation states tend to violate the convention from time to time by launching objects into space without having them registered. And it doesn’t look that the violators are facing any consequences of their actions.

The Moon Agreement

The 1979 U.N. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which is also known as the Moon Agreement, is another document regulating the asteroid mining on the international level. The agreement defined the Moon, other space objects and their natural resources as the “common heritage of mankind” but didn’t specify what does it all mean. Three years later, the 1982 Convention on the Law of the Sea clearly determined that states, natural or legal persons can’t claim, acquire or exercise rights on the resources mined from the seabed. Considering the Convention’s potential influence on the Moon Agreement, spacefaring nations, the United States and the Soviet Union, refused to sign and ratify it.

Even though the leading space nations decided not to be a part of the Moon Agreement, the document has interesting concepts regarding the legal framework for extraterrestrial mining.

Article 1(1) presumes that provisions related to the Moon are also applicable to other celestial bodies, “except insofar as specific legal norms enter into force with respect to any of these celestial bodies.” Thus, space mining operations could have their own special regime, allowing companies or states to freely extract and appropriate mined resources, thus stimulating businesses to develop new products and tools. In that case, the “common heritage of mankind” will have to be made a concept more friendly to private companies.

Secondly, Article 1(3) of the Moon Agreement states it shouldn’t be appliсable “to extraterrestrial materials which reach the surface of the Earth by natural means.” Probably, the text of the regulation refers to materials that entered the Earth’s atmosphere without human interference, like the Carancas meteorite or the Chelyabinsk meteor. However, the agreement draws a line between celestial bodies and extraterrestrial materials. It can be a good argument that the prohibition to “appropriate” the Moon and other celestial bodies, stated in Article II of the Outer Space Treaty applied only to the space object itself but not to the resources mined on such objects. In turn, would an appropriation of space resources be regulated if businesses don’t even send them down to Earth?

Article 11(3) of the Moon Agreement states:

“Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become the property of any state, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”

So, it seems owning space objects and their resources is directly prohibited. However, Frans von der Dunk, professor of Space Law in the Nebraska College of Law thinks that “in place” might mean that the extracted resources could legitimately become one’s property. However, it is unclear if it will be used as a loophole to claim such resources.

Conclusion

It’s not that common when things get regulated before they even get real, but asteroid mining and space mining in general were sort of regulated many years ago. Since then many things have changed: private companies build rockets and launch spacecrafts, and even plan to create the first ever private space station. Thereby, the laws are likely to be changed someday in order to keep in line with the actual reality.

The asteroid mining industry, even excluding lunar mining, is able to make many people trillionaires, crash the economy as we know it, and at the same time help drive technological innovations. So, it’s quite important to regulate this industry in a right way, promoting new technologies and approaches but, at the same time, keeping tabs on private companies that shouldn’t obstruct the scientific exploration of outer space.

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