Plans to mine minerals on celestial bodies could violate many aspects of international space law
SHOULD asteroids rich in precious
metals be regarded, in legal terms, like the fish in the sea? That is
one approach the United Nations could take as it struggles to come to
terms with mining plans announced by
Planetary Resources, a start-up company based in Seattle.
In just under two years, Planetary
Resources says it will launch the first of a series of space telescopes
into low-Earth orbit in a bid to spot nearby asteroids of a size and
mineral composition potentially worth mining. When a strong candidate is
found, it plans to dispatch a robotic probe to assess the asteroid's
precious metal content, with platinum a priority. If that is found,
yet-to-be developed robots will be dispatched to mine it. If it is small
enough, the asteroid could be brought into an Earth orbit first, to
make the process easier.
Planetary Resources's plans seem well
advanced and others are not far behind. And it's not just asteroids in
these firms' sights.
Moon Express,
a start-up based in Las Vegas, is planning to prospect the moon for
platinum and other metals deposited on its surface by meteorites.
It all sounds mind-bogglingly
expensive and complicated, and it is. But those planning the operations
have more earthly concerns to deal with, too. Mining asteroids or the
moon appears to violate many of the tenets of international space law.
The most important of these is the
UN's Outer Space Treaty of 1967, which in rather pompous language states
that "the exploration and use of outer space shall be carried out for
the benefit of all countries and shall be the province of all mankind".
It also specifically prohibits states
from making territorial claims in space. "States cannot claim rights
over an asteroid," says Joanne Wheeler, a lawyer at London legal
practice CMS Cameron McKenna and a UK government adviser on the UN's
Committee on the Peaceful Uses of Outer Space. "The Outer Space Treaty
says the moon and celestial bodies such as asteroids are not subject to
national appropriation. Whether that means no one owns the asteroids, or
we all do under some common heritage, what's clear here is there is no
state sovereignty over them."
What applies to sovereign states
probably also applies to private companies. "It is not possible for
Planetary Resources to say it owns all of an asteroid even if they are
the first there," says Wheeler.
If the ownership of an asteroid is in
question, who, then, has legal title to the ores extracted from it and
sold back on Earth? Again, it is not clear, though Wheeler points out
that there is already a legitimate market for space rocks in the form of
meteorites. This probably puts Planetary Resources in the clear.
Eric Anderson, co-founder of Planetary
Resources, doesn't see a problem: "Our analysis shows we have an
unequivocal right to mine asteroids. Nothing in the Outer Space Treaty
prevents that." He doesn't agree that asteroids, especially those in the
50 to 500-metre size range, are "celestial bodies". Meteorites are
fallen asteroids, he says, and they are not regarded as celestial
bodies.
Some even see the treaty as irrelevant
to asteroid mining. "The Outer Space Treaty is a paper tiger with no
teeth," says Michael Gold, a lawyer specialising in commercial
spaceflight in Washington DC. "It's unenforceable and any state can pull
out of it with a year's notice. I expect mining capability will trump
the law in any situation."
Whichever interpretation you prefer,
it is clear that there is no international regime explicitly governing
asteroid mining. "Planetary Resources are in a rather grey zone," says
Wheeler. "This is no legal certainty over whether they can do it or
not."
She suggests that a future regime
could be based on the law of the sea. "The fish in the high seas are not
owned by anyone. You can 'mine' the high seas by taking fish out of
them and you can sell them," she says. "Similarly, asteroids might not
be owned by anyone but you might be able to mine the resources and then
sell them on."
Mining the moon is also fraught with
legal uncertainties. In principle it is governed by an international
treaty informally called the
Moon Agreement,
which seeks to manage our satellite's natural resources. But the treaty
is largely worthless because it has not been ratified by any of the
spacefaring nations.
"The Moon Agreement recognises that
mining of the moon is about to become feasible," says Wheeler. "But the
US, China and Russia are not signatories, so it lacks teeth." The UN is
encouraging members to sign, but the concern is that a fait accompli by a
mining company could render the treaty moot.
Finally, what if space mining
operations go wrong? If miners cause an asteroid that they have nudged
nearer to Earth to plummet into the planet, who would be liable? This is
covered by another UN treaty, the
Space Liability Convention,
which makes the nation that launches a spacecraft liable for damages.
"This concept worked back when it was a clear-cut case of governments
launching objects, but with many entrepreneurs now launching spacecraft
it's getting much more difficult to apportion blame," says Wheeler. As a
result, the US and Japan are investigating new liability mechanisms,
she says.
The chances of Planetary Resources
causing impacts are minimal, says Timothy Spahr, director of the
asteroid-hunting Minor Planet Center at Harvard University. Orbital
mechanics are well understood, he says, making asteroid trajectory
calculations simple. "Hitting the Earth is a damn hard thing to do."
Like many astronomers, Spahr has an
asteroid named after him. How would he feel about 2975 Spahr being
captured and mined? "That's a tough question," he says. "You'd have to
ask a lawyer."