This is a tricky one. The Outer Space Treaty isn't precise enough on the subject. Governments can't stake out claims to celestial bodies, under the treaty. And if an individual were to stake out a claim, then they would not be supported by any government, it is of no more validity than me pointing at the Moon and saying I own it. And their government can't support them, and indeed has to say they don't recognize that claim, by the Outer Space Treaty.
And businesses obviously want to have some claim on the resources they extract to make a profit. So how is that going to be resolved? Since everyone has signed up to the Outer Space Treaty it can't be resolved by a government laying claim to an asteroid or part of the Moon.
So need to find a way to do it consistent with the treaty. But additional to it because the treaty doesn't cover this in enough detail.
Several suggestions made by lawyers but no agreement yet on way forward.
One way is to use the idea of a "safety region" - already have the situation where if you approach the ISS then your spaceship is under control of the ISS for safety reasons. Same way, on Earth if you approach an oil rig, your boat is under control of the oil rig - they will tell you how you can safely approach and when and where - same for ISS.
So - that's the beginning of some kind of an authority over, e.g, the region you are mining, so could be a starting point for some legal framework.
Another idea is to have some kind of functional rights, that by starting a mine, you have certain rights that let you continue to operate it so long as it is operating. That also could be consistent with the OST because you aren't asserting ownership of any celestial body or territory just rights to work on that mine.
With both of these, then if you abandon your mine, you can no longer assert functional ownership, or safety reasons for authority over it, so anyone else can then come along and take over.
Another idea - that if you are able to move an asteroid, then it no longer counts as a celestial body - so you stake ownership of an asteroid by moving it. This however is a bit of a legal quibble and not so easy to see how it would work.
Generally lots of talk about it, no conclusions yet. But one way or another it does seem that some legal way forward is possible.
Another issue is that the OST says right at the beginning in Article 1.
So if some business in the US goes into space and captures, say, a platinum rich near earth asteroid, and then mines it and brings the platinum back to Earth and sells it at a profit, for the benefit of its shareholders and members in the US - is it using celestial bodies in a way that is "for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development"?
A straightforward way of interpreting this is to say that there should be some benefit sharing from space activities for all nations, that it can't just be done for the benefit of the mining company itself. This was where the Moon treaty foundered though, to try to establish this in detail, that it is done for the benefit of all nations.
So - if say a US company mines an asteroid and returns platinum, or any other country - in an exclusive non benefit sharing way just for its own profit - it may well be challenged under the OST by other countries. Especially the poorer countries who have also signed the treaty and don't have the possibility of doing mining themselves.
This could be a real issue, because it wouldn't take much platinum from space to make all the Earth companies that produce platinum go out of business. It could disrupt an entire sector of industry. Because platinum is a very desirable material for engineering. And is much more common in space. It could change from a rare precious element used in jewelry to an element that is as common and widely used as Aluminium.
Or - opposite could happen - some cartel like the diamond cartel - artificially keeps prices of space based platinum high for profit reasons, could return thousands of tons to Earth and instead returns just a few tons in order to keep the prices high enough to finance the mining operations and make a healthy profit.
So - space mining has lots of possibility to benefit humanity. But it's also potentially disruptive. And it could create a situation with even more imbalance between the rich and poor nations. For that matter, if they were able to return platinum in huge quantities from space with near future technology - could end up in a situation where one single company - or two or three - are the sole providers of platinum to the Earth, with the platinum also used widely for just about everything. So - could end up with these companies - becoming hugely wealthy mega-corporations that are as wealthy as the US, say or more so, just a single company earning trillions of dollars a year.
We do have a precedent that it is possible to own materials returned from space, for scientific samples, the US government is responsible for the lunar samples it returned, and the Russian government for its lunar samples, and they can give them to other countries and individuals. But - that's not quite the same as commercial ownership for reasons of profit, because they are doing it for scientific reasons and so within the spirit of the treaty, research for the benefit of all humanity - and scientists from all over the world can study the samples.
I think it is bound to be regulated. And to require lots of laws also. But how - details not worked out and will surely require our keenest legal minds and politicians and many others to work out a solution. Not an easy problem to solve. But benefits of getting it sorted out could potentially be huge.
In all of this, do be aware, I'm not a lawyer. This should not be taken as legal advice. For details follow up the links to the papers and talks by specialists in space law in the article below. If you notice any mistakes in this do let me know in the comments. Thanks!
See also Will Anyone Ever Own Their Own Land In Space - And May We Get Wars In Space In The Future?
And businesses obviously want to have some claim on the resources they extract to make a profit. So how is that going to be resolved? Since everyone has signed up to the Outer Space Treaty it can't be resolved by a government laying claim to an asteroid or part of the Moon.
So need to find a way to do it consistent with the treaty. But additional to it because the treaty doesn't cover this in enough detail.
Several suggestions made by lawyers but no agreement yet on way forward.
One way is to use the idea of a "safety region" - already have the situation where if you approach the ISS then your spaceship is under control of the ISS for safety reasons. Same way, on Earth if you approach an oil rig, your boat is under control of the oil rig - they will tell you how you can safely approach and when and where - same for ISS.
So - that's the beginning of some kind of an authority over, e.g, the region you are mining, so could be a starting point for some legal framework.
Another idea is to have some kind of functional rights, that by starting a mine, you have certain rights that let you continue to operate it so long as it is operating. That also could be consistent with the OST because you aren't asserting ownership of any celestial body or territory just rights to work on that mine.
With both of these, then if you abandon your mine, you can no longer assert functional ownership, or safety reasons for authority over it, so anyone else can then come along and take over.
Another idea - that if you are able to move an asteroid, then it no longer counts as a celestial body - so you stake ownership of an asteroid by moving it. This however is a bit of a legal quibble and not so easy to see how it would work.
Generally lots of talk about it, no conclusions yet. But one way or another it does seem that some legal way forward is possible.
Another issue is that the OST says right at the beginning in Article 1.
"The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind."
Treaty text here: Outer Space Treaty - 1967
So if some business in the US goes into space and captures, say, a platinum rich near earth asteroid, and then mines it and brings the platinum back to Earth and sells it at a profit, for the benefit of its shareholders and members in the US - is it using celestial bodies in a way that is "for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development"?
A straightforward way of interpreting this is to say that there should be some benefit sharing from space activities for all nations, that it can't just be done for the benefit of the mining company itself. This was where the Moon treaty foundered though, to try to establish this in detail, that it is done for the benefit of all nations.
So - if say a US company mines an asteroid and returns platinum, or any other country - in an exclusive non benefit sharing way just for its own profit - it may well be challenged under the OST by other countries. Especially the poorer countries who have also signed the treaty and don't have the possibility of doing mining themselves.
This could be a real issue, because it wouldn't take much platinum from space to make all the Earth companies that produce platinum go out of business. It could disrupt an entire sector of industry. Because platinum is a very desirable material for engineering. And is much more common in space. It could change from a rare precious element used in jewelry to an element that is as common and widely used as Aluminium.
Or - opposite could happen - some cartel like the diamond cartel - artificially keeps prices of space based platinum high for profit reasons, could return thousands of tons to Earth and instead returns just a few tons in order to keep the prices high enough to finance the mining operations and make a healthy profit.
So - space mining has lots of possibility to benefit humanity. But it's also potentially disruptive. And it could create a situation with even more imbalance between the rich and poor nations. For that matter, if they were able to return platinum in huge quantities from space with near future technology - could end up in a situation where one single company - or two or three - are the sole providers of platinum to the Earth, with the platinum also used widely for just about everything. So - could end up with these companies - becoming hugely wealthy mega-corporations that are as wealthy as the US, say or more so, just a single company earning trillions of dollars a year.
We do have a precedent that it is possible to own materials returned from space, for scientific samples, the US government is responsible for the lunar samples it returned, and the Russian government for its lunar samples, and they can give them to other countries and individuals. But - that's not quite the same as commercial ownership for reasons of profit, because they are doing it for scientific reasons and so within the spirit of the treaty, research for the benefit of all humanity - and scientists from all over the world can study the samples.
I think it is bound to be regulated. And to require lots of laws also. But how - details not worked out and will surely require our keenest legal minds and politicians and many others to work out a solution. Not an easy problem to solve. But benefits of getting it sorted out could potentially be huge.
LEGAL DISCLAIMER
In all of this, do be aware, I'm not a lawyer. This should not be taken as legal advice. For details follow up the links to the papers and talks by specialists in space law in the article below. If you notice any mistakes in this do let me know in the comments. Thanks!
See also Will Anyone Ever Own Their Own Land In Space - And May We Get Wars In Space In The Future?
About the Author
Robert Walker
Writer of articles on Mars and Space issues - Software Developer of Tune Smithy, Bounce Metronome etc.Studied at Wolfson College, Oxford
Lives in Isle of Mull
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