Can Congress Authorize Mining On Asteroids?
Is Space Mining Legal?, Popular Science
“In May, the House of Representatives passed a bill that would give asteroid mining companies property rights to the minerals they extract from space. Called the Space Act of 2015, the bill now awaits the Senate’s decision. … In an article in the journal Space Policy, Fabio Tronchetti, a lawyer at the Harbin Institute of Technology in China, argues that the Space Act of 2015 would violate the Outer Space Treaty. He writes: States are forbidden from extending their territorial sovereignty over outer space or any parts of it. Despite arguments claiming otherwise this prohibition also extends to private entities. In essence, Tronchetti argues that if the U.S. passes this bill, it will confer rights to space companies that the U.S. doesn’t have the power to give.”
Keith’s note: This is like the legislation declaring the Apollo landing sites and their artifacts as a “National Historic Park”. How can the U.S. Congress make laws, impose regulations, and confer rights regarding activities – by anyone – on bodies in the solar system over which it has no jurisdiction?
Why would any company pour billions into a mining project if they cannot own anything that they dig up? A mining site is composed of stuff that a miner wants to take and eventually sell to someone else. You can’t sell something that you do not own. And if no nation can claim territory in space (where those mining sites would be located) then how can any nation make laws that give someone the right to mine these places?
– H.R.2262 – SPACE Act of 2015
“Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.”
– Outer Space Treaty
“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
– Protecting the Apollo Sites, earlier post
This is just the thing people who espouse the idea of private enterprise exploiting the natural resources of the solar system (of which I am one) should have seen coming. The faction(s) who are not first into space to do this sort of thing will be critical of those who are out there performing the work, taking the risks, and getting the reward. The only weapon they have, outside of bare military force, is the OST.
<shrug> Maybe we should start thinking about getting out of the treaty. Frankly, barring a global police state, I believe that sometime between now and when space travel and the ability to harvest space resources becomes “routine”, the treaty is going to fall apart anyway.
Everyone likes to point to the Apollo program as just a Cold War relic. Well, you could make same argument for the OST.
Extracting a resource from a site is not prohibited from the treaty. You just can’t claim ownership over the site.
Article VIII clearly states the objects that you send into space remain your property. So, the U.S.A. has an obvious right to say not to disturb the Apollo relics on the moon since they are still U.S.A. property.
The intent of this treaty is to encourage peaceful exploration and use of outer space. ISRU is peaceful usage.
I’ll grant you that a very small asteroid which is consumed in ISRU is legally gray, but common sense should apply that exerting sovereignty over a celestial body is meant to apply to something of significant size, and a pebble is not a moon.
The problem is that there are strategically important places right in our vicinity in space. Lunar poles are a prime example, because of their unique resource availability ( near constant sunlight, light gravity and volatiles, only 2 light seconds away )
So? It still allows you to recover the resources from those sites.
So why would any company pour billions into a mining project if they cannot own anything? A mining “site” is composed of stuff that a miner wants to take and eventually sell to someone else. You can’t sell something that you do not own. And if no nation can claim territory in space (where those mining sites would be located) then how can they make laws that give someone the right to mine these places?
Article I: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States”
The OST does not prevent you from mining (Article I). It does not prevent you from owning and selling what you extract (Article VIII). It does prevent others from interfering with your activities (Article IX).
What you can’t do is claim territorial sovereignty. That is distinct from the right of ownership over tangible goods, which is consistent with international law (Article III).
Moreso, under Article VI, “State Parties” are required to regulate the activities of private entities operating in space: “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”
Provided the US doesn’t claim territorial sovereignty over space, there’s no conflict with the OST.
People seem to be going out of their way to try to interpret OST in the most hostile way possible, so they can wring their hands and whine about something that’s never actually been an issue.
Disagree? Show me the international disputes over the ownership of samples brought back by Apollo, Soviet Luna, and various sample-return missions.
What about if you grab a space rock, then take it back down to Earth? Can you claim it then, or does the fact that you initially grabbed it in space disqualify that?
Presumably that happens with meteorites, after all. Someone finds a meteorite on their property, and it becomes their meteorite, right?
Certainly. But that meteorite is no longer in Outer Space, as defined for the purposes of the Treaty. It arrived on Earth without any human intervention.
Good point. So I wonder what happens if you bring something down, and land it on a piece of your property.
I say “what happens”, but of course if you’re bringing space material back to Earth you’re going to have go before planetary protection first to okay it, at which point presumably you’re also going to have to figure out the rights issue.
However, all sample return missions claim ownership over the samples returned. And that has never been disputed by the UN or by any nation against others.
The six Apollo missions, the three Luna missions, various sample return probes.
Exactly, a very strong legal precedent that is too often ignored.
Really, if lawyers like this truly believed that rocks taken from a Celestial Body are still part of it and not Chattels they should file a lawsuit against the U.S. government for not sharing all of the Apollo samples equally with all of the nations of Earth.
But they won’t because I expect they know their lawsuit will be thrown out of court as fast as the one an individual filed trying to charge NASA rent for landing on Eros which they claim they owned 🙂
But when it landed on Earth it ceased to be a Celestial Body, because Celestial Bodies are all bodies in the natural place beyond Earth, that is the Celestial part. Instead it became part of the Earth, and the laws governing the part of the Earth it landed on.
Its simple, an object, regardless of if it is a meteor, a particle of dust, or an asteroid, is a Celestial Body as long as it is in its natural orbit. Once it is no longer in its natural orbit, its motion changed by artificial means, it ceases to be a Celestial Body and becomes a personal one, “Chattel” property of who ever changed the orbit.
The Apollo astronauts, collecting sample, move those samples from their natural positions, which means they ceased to be Celestial Bodies and became chattels of the U.S. government paid astronauts. That is why the samples are considered property of the federal government, as court cases of stolen Moon rocks have shown.
In terms of meteorites, it is simple, the Earth altered the Celestial Body’s natural orbit, it ceases being a Celestial Body and becomes part of the Earth, and of the land it impacted on. So whoever owns the land owns the meteorite.
What about junk in orbit??
The Outer Space Treaty is very clear, anything launched into space is the property of the original launcher, and is under the jurisdiction of the nation that launched it.
Simply put, that means to salvage an old satellite, you’d need to get explicit permission from the nation or company that originally launched it, as well as be compliant with the relevant laws of that nation or the nation in which the company resides.
I believe it also says that craft that land on bodies the hardware and it’s immediate surroundings.. effectively creating a park.
I thought that was the reason some of ther space powers started dropping hardware on the moon, effectively creating national parks.
TL;DR: Nope.
Article II is really clear on this: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
So there can be no territorial claim.
However, the hardware is owned by the nation who launched it, as is made very clear in Article VIII: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.”
And that hardware can’t be deliberately damaged by any other nation, as established in Article VII: “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.”
Now that’s all a little bit vague, and it’s meant to be, so it has broad application. I suggest reading the entire text of the treaty for a bit more context (it’s not very long): http://www.state.gov/www/gl…
Now, there was a bill floated in congress last year to make the Apollo landing sites into a U.S. National Park. The legal protections that would give the site would actually only be enforceable in the USA. However, as far as I know, the bill never came to a vote and or has died in committee. So the legal ramifications of protecting the Apollo landing sites in US Law won’t be explored. However, it might be possible to make the Apollo landing sites (and other historical landing sites) into World Heritage sites. That would give them international protection, but that hasn’t happened yet either.
So the best that can be done has actually already been done: NASA has issued guidelines (completely unenforceable) as to how the Apollo sites should be approached, limits to how close a rover could drive to one, how close is too close to fly over one, etc. These guidelines were issued when the Google Lunar X-prize started, and some teams were talking about visiting the Apollo landing sites.
Also well worth the read (93 pages long pdf): http://go.nasa.gov/JDYo9v
http://www.nasa.gov/home/hq…
“or constructed on a celestial body” is quite a loophole. So, if I build a habitat module on an asteroid, using local materials, I’d own it. Then, presumably, I could move it back to Earth and sell it for scrap metal. Who wrote this thing?
Sounds fair enough.
Diplomats from dozens of countries, using previous U.N. Resolutions as a guide, although the two key players were the Soviets and the United States who because of their superpower status, especially in space, dominated it.
The group of 77, (emerging nations) hadn’t got organized yet so they were not able to derail it into International “sharing” as they did the Moon Treaty and the Law of the Sea Treaty, so OST is much more favorable to national. and therefore private, interests than those treaties are.
Mostly two superpowers who were on the brink of all-out nuclear war.
Actually the way to handle the Apollo sites is for NASA to simply to state that research on those sites is continuing, for example determining how long it will take the foot prints to disappear, and that any visits to those sites could harm that research. This will fully invoke the non-inference element of Article IX of the OST. And it doesn’t need any Congressional action, just a press release.
Which horribly complicates ideas to remove orbital debris. If you had a brilliant way to remove the potentially hazardous bits of metal, paint chips, etc. floating around in LEO, you’d technically be obliged to identify and get permission from the launching nation. Deorbiting a _Russian_ paint chip without _Russian_ permission would be a treaty violation.
True. People twist themselves in knots over the asteroid mining issue, but this is the biggest flaw in the otherwise quite workable OST.
There needs to be a mechanism to end sovereignty over objects that are not under control of its launching nation. It doesn’t have to be especially strict, with plenty of room for the owner to object. But a clear mechanism which says, “If a salvager lodges an Application of Space Salvage with the UN Sec-Gen, who then alerts the registered owner, the owner has X-days to lodge a refusal, else the object becomes available for salvage.”
[There also needs to be a mechanism to enforce Article VII. (“Each State Party to the Treaty that launches [an object into outer space] is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.”) Too many nations just ignore this. China’s asat missile test. ESA and Envisat. Etc. Everyone who leaves upper stages or dead sats just drifting.]
I don’t think your idea goes far enough. How do you identify the launching nation of the paint chip you want to remove from orbit? The treaty, and your suggestion, requires item-by-item identification of nationality. By the same token China’s liability due to the ASAT test is almost nill. If a spacecraft is damaged by orbital debris, how could someone prove in court which country originally launched it?
That was my point. There needs to be a mechanism assigning damages for needlessly creating debris and risk; not just waiting until someone’s satellites are destroyed and they have to try to sue in international court (which most of the space powers don’t recognise anyway.)
Actually, that one is easy. If you haven’t previously lodged ownership with the UN Sec Gen (under an extension of Article XI, for example), then you can’t retrospectively claim ownership. Since no-one will ever register each paint chip or bolt-head, there’s no issue. Instead, I was talking about salvaging major items, like dead satellites, or abandoned upper-stages. In that case, you’d need another mechanism to apply for salvage rights.
By its orbit. Different nations tend to use different orbits more often. Also the Registration Convention requires all payloads be registered with a UN clearing house.
They are required to register the intact spacecraft they launched. Not small pieces of junk that came off it. Worse, orbits evolve and precess. The smaller the object, the more significant things like photon pressure and static charge/Lorentz forces become. At best you could say an impacting piece of debris _probably_ came from a particular country. A statistical likelihood isn’t the sort of proof you can take to court (if you expect to win the case.)
International courts are different than domestic courts, different standards. Also if you get a sample of the piece you could analyze it to see where it was made.
Yes, both the Soviets and Americans were afraid the other would gain strategic advantage by salvaging their old spacecraft, so they provided very strong personal (Chattel) property rights in the OST to prevent it. And the Rescue Convention goes even further, requiring a nation to return any space hardware found on Earth to the nation that owns it. They may be compensated for any damage, but they must return it.
Any program to clear space of debris would require all the nations that have hardware in space to agree to a salvage method that would protect their national technology secrets. Or else would be limited to the debris of the nations that signed it.
It gets picked up by this guy.
http://robsspaceplace.blogs…
I have not heard anyone saying that NASA’s proposed Asteroid Redirect Mission violates the Outer Space Treaty. So if the US government can grab an asteroid and make peaceful exclusive use of it, then the US government should be able to make laws that allow US companies to also allow peaceful exclusive use of an asteroid, operating under the same restrictions as the US government.
It’s time that the Outer Space Treaty got updated and clarified anyway. The Law of the Sea has been updated and modified several times already.
Consider the California Gold Rush — at least as portrayed in western movies. Once they had made a strike, prospectors would rush into town with a sample of the ore to have it assayed and file a claim. Often, other parties tried to prevent them from filing. A legal claim was the best protection against claim-jumpers.
The Outer Space Treaty effectively precludes any private citizens or corporations from filing a claim on resources they might want to exploit on the moons, asteroids, comets, or other planets of this solar system. Without such legally recognized titles, it seems to me they would be at the mercy of claim-jumpers.
If development is to expand off Earth, legal protections of property rights must be in place. Therefore, modification of the Outer Space Treaty is needed. I think it will happen later this century. If we’re lucky.
Reality check. Only a very few firms will have the resources needed to mine on asteroids. And all of them, at least the mining firms, will have long experience working together on Earth. Agreements will be worked out between them. Wars between corporations may make good novels, but are bad for profits, so deals will be work out.
By contrast anyone with a horse, gun and shovel could join a western gold rush, including those without any qualms about stealing what they want. That is what made the wild west so wild.
The only firm with means and resolve to do any of this is currently CGWIC. Good luck working out the deals
Funny, the China Great Wall Industry Corporation make deals all the time with foreign firms. Why would the Moon be any different? The global mining industry is nothing but a network of alliances and partnerships. It is how you raise the tens of billions needed for modern mining ventures.
Also mining the Moon requires more than just sending a lander. They have a lot more technology to gather before they are ready.
Oh it absolutely requires a hundred times more than sending a lander and teleoperated rover. But again, they are investing time, talent – and as a result, remninbis into the venture.
Yes, and will do as other Chinese firms have done, cut deals with foreign firms as needed for technology, finance and other operational needs. U.S. firms may have a more difficult time because of ITAR, but the rest of the world will be opened to investments.
Article IX requires that Parties refrain from activities that interfere with other nations activities. This is consistent with the Law of the Sea which also prohibits interference with another nation’s vessels in international waters.
It doesn’t prevent someone from mining the other side of your asteroid. But why should it? I don’t want a nation like Russia or China (or the US) to be able arbitrarily claim the moon, or Mars, or even Vesta.
Sadly the lawyer writing that article doesn’t seem to understand the difference between Real Estate Law and Chattel Law. Nor has he bothered to research the legal literature published at the time of the OST. Nor the legal precedents already established for lunar samples.
There is nothing that violates the Outer Space Treaty in the ASTEROID Act, it merely clarifies that the same Chattel Rights the U.S. Government enjoys extends to private firms. Period. Clarifies those rights, not create them, as in theory all governments and firms in OST nations not part of the Moon Treaty already enjoy those rights.
I notice the lawyer works in China, which is interesting.
Private property rights are natural rights. They are not granted by any government and they do not end 100 km up. These bills and treaties have no impact (positive or negative) on me or any company to harvest resources in space to use as I or those companies see fit.
Right. Good luck with that mindset.
Of course that’s true but misses the point, which has to do with the initial establishment and eventual transfer of property rights.
What does “initial establishment and eventual transfer of property rights” mean?
Government. For example all Real Property rights track back to an initial Land Patent, or Land Grant, granted by the government to an individual or other legal entity. The same is true for Intellectual Property Rights.
Personal Property Rights (Chattels) are a bit different because they have a more traditional basis to them, but governments do have to acknowledge them to be legal. When they don’t problems tend to develop, usually resulting in conflicts between individuals and government, as with those resolved by the Magna Carter, the English Civil Wars and our Revolutionary War.
But that is not an issue with the OST that provides very strong Chattel Property Rights to governments, which then have the choice of extending them to their national, which, to bring this full circle, is what the ASTEROID Act is about.
Rights are not granted by governments — they are only taken away. It is ridiculous to think that some government has to say “ok” before I or anyone else can take a rock off of an asteroid.
Go for it dude. Try and launch your rocket and see what happens.
So, I think the correct legal precedent is: “Thanks for all the fish…!”
In the case of the sea, and fish taken from it in international waters, fish can be taken and sold — since once they are taken they are the property of the fishing vessel that caught them. In this case, it seems to me that materials harvested in space could be “owned” just as fish are owned once they are caught, although the sea (international waters) is not…
Best,
That’s imperialism, I guess. Shouldn’t you be accustomed to it?
“Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.”
Please read carefully how it is worded.
“asteroid resources obtained” This means the resources not the asteroid. And this dose not included any other body like moon or planet. Also it only recognize there right to the resources, So if you bring it back to the US the US will not take it away under “Outer Space Treaty”. And if someone landed on the asteroid before you did they will not be able to make a clam on the asteroid only the resources they minded not yours. If you landed in another county and they take the resources it will be out of the US jurisdiction.
So this dose skirt the “Outer Space Treaty”. But how it will play out in a court room is another matter.