Asteroid Mining on the Move

     In April 2012 Planetary Resources announced an ambitious venture to mine asteroids. Followed by Deep Space Industries and Stott Space, the race to capture and mine an asteroid has kicked into gear. The rush to these celestial bodies is not necessarily for gold, but for platinum based metals that are used in renewable batteries. Metals used in manufacturing such as iron and nickel are also believed to be available. One question that comes up is how will the materials extracted from the asteroid be brought back to Earth? Another question is what effect will the influx of rare materials have on the market for those materials? An answer to the first question is that the materials do not have to be returned to Earth. Processing and manufacturing can take place in space. Using these materials to build new space vehicles can reduce the cost of space exploration as one of the largest costs is the fuel needed to leave Earth. As for the question regarding the effect on the market, well we can leave that to the economists and the invisisble hand for now. For a discussion of some of the legal issues surrounding asteroid mining see the previous post on the legal issues on mining the moon. Below is a collection of links from around the web to offer a snapshot of where the asteroid mining industry is and where it is headed.

Planetary Resources: http://www.planetaryresources.com/

Deep Space Industries: http://deepspaceindustries.com/

Stott Space: http://stottspace.com/

Goals of Stott Space: http://www.spacedaily.com/reports/Stott_Space_Aims_to_Mine_Asteroids_this_Decade_999.html

NASA receives funding to capture and asteroid:
http://www.space.com/20538-nasa-asteroid-capture-funding.html

Senator Bill Nelson (D, FL) and others back NASA plan to capture an asteroid: http://www.newspacewatch.com/articles/sen-bill-nelson-says-nasa-will-initiate-asteroid-capture-project.html

Planetary Resources view of NASA's asteroid plan:
http://www.planetaryresources.com/2013/04/nasa-wants-to-bag-an-asteroid/

First an asteroid, and then Mars:
http://cosmiclog.nbcnews.com/_news/2013/04/06/17630481-administration-confirms-nasa-plan-grab-an-asteroid-then-focus-on-mars?lite

Commentary on NASA's plan: http://www.spacedaily.com/reports/More_Treasures_from_Asteroids_999.html

Keck Institute for Space Studies: Asteroid Return Mission Study: http://www.kiss.caltech.edu/study/asteroid/

Book Review: Law and Regulation of Commercial Mining of Minerals in Outer Space

     Law and Regulation of Commercial Mining of Minerals in Outer Space by Ricky Lee is the seventh volume in the Springer Space Regulations Library. ISBN: 9789400720381. Lee lays out a strong background and a detailed overview of the current state of space law to form his proposal for creating a regulatory framework for mining in outer space. The book is organized into 7 chapters, references, and an index. After the detailed table of contents are lists of abbreviations, list of figures, list of tables, glossary, and a list of reports, series, and journal titles.

     Chapter 1 provides the historical background for space exploration, the hypothesis of the book, and lays out a broad overview of the other chapters. There is a graphical representation of the flow of the chapters on page 3. This is the first of many charts and graphs throughout the book which add detail and allows the reader to obtain a thorough grasp of the technical material. Chpater 2 discusses the economic and technical prospects of space mining. One part of the chapter of particular interest is the discussion of the various classes of asteroids and their geologic make-up. Chapter 3 reviews the exisiting international space law. Chapter 4 explores how commercial uses of outer space coincide with provisions of the international treaties with discussions on commercial versus public use and the prohibition on property rights. Chpater 5 describes the policy impasses of the "province of all manking" and "common heritage of mankind" principles and the need for a new legal framework. Chpater 6 is the key chapter to the book's namesake. This is the chapter where Lee proposes resolutions to balance regulation and free market in the creation of an international regulatory authority without violating or recreating the international treaties. Chapter 7 briefly discusses the assumptions that must be satisfied in order for the hypothesis to be proven.

     Along with the footnotes in each chapter the researcher will also find the organization of the references section highly useful. This section is broken down into treaties, United Nations documents, international cases, domestic (by country) legislation and regulations, domestic cases, and secondary sources. Overall the book is detailed, thorough and a very interesting read for the space law and asteroid mining enthusiast.

Is Mining the Moon Legal?

     Google recently announced that they will award $20 million to the "first privately-funded company to land a robot on the moon and explore the surface by moving at least 500 meters and send high definition video back to Earth by 2015." There is a question of the legality of a private enterprise mining the moon. Whether the answer is yes it is legal, or no it is not legal is open to interpretation. Here are the sources that one would look to in order to formulate the argument:

Outer Space Treaty (OST): Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signatureJan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

     Article I of the OST provides that 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… and shall be the province of all mankind, free for exploration and use by all States who shall be free to access all areas of celestial bodies. Article II prohibits any national appropriation of outer space and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. These clauses do not forbid the exploitation of natural resources it is only prohibiting any one nation from claiming ownership of any celestial body.

    Article VI sets out the responsibilities of the States parties to the treaty:

States Parties to the Treaty 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, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. 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. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

     Article VIII gives States jurisdiction and control over objects and personnel launched into space and retains jurisdiction while in outer space when the object and personnel are launched from that state. (emphasis added).

Moon Agreement: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22 (entered into force July 11, 1984)

     The Moon Agreement is largely thougth to be a failure. None of the major space fairing nations at the time signed this treaty. However more of the signatories to the Moon Agreement are becoming space fairing nations and it could possibly hold more weight as part of the International Treaty System. Article I, paragraph 1 of the Moon Treaty states that it applies not only to the moon, but also “to other celestial bodies within the solar system, other than the earth.” “The exploration and use of the moon shall be the province of all mankind (as in the OST) and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Article 11 paragraph 1 calls the moon and its natural resources the common heritage of mankind.”The “common heritage of mankind” notion was embraced by developing nations and interpreted as a principle that “celestial body resources are the common property of all the nations” and requires an international regime for the redistribution of wealth and technology among nations. It was these economic provisions of the Moon Treaty, rather than the demilitarization provisions in Article 3, that sparked controversy and are considered unfavorable to private enterprise.

      There are two (2) exceptions to the prohibition on the exploitation of natural resources in outer space: The first exception is if specific legal norms enter into force with respect to any of these celestial bodies. The second exception is if “an appropriate international regime is created to govern the exploitation of the natural resources."

Court cases:

Smith v U.S. 507 US 197 (1993)

     In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Nemitz v. U.S. 2004 WL 3167042 (D. Nev. April 26, 2004) Not Reported in F.Supp.2d

     NASA landed a robotic spaceship on Asteroid 433 "Eros" in 2001. Gregory W. Nemitz informed the space agency that he owned Eros, as he previously filed his claim to ownership of Eros at an online registry for celestial land claims, which a Seton Hall University School of Law professor started in the 1990s to stir discussion of space-related legal issues. The case was dismissed on the grounds that the U.S. Constitution does not recognize a cause of action for denial of property rights in outer space.

A number of law review articles have also been written on this topic. Here are a few worth looking into:

Ezra J Reinstein, Owning Outer Space, 20 Nw. J. Int'l L. & Bus. 59 (1999).

Jeremy L. Zell, Note, Putting A Mine On The Moon: Creating An International Authority To Regulate Mining Rights in Outer Space, 15 Minn. J. Int'l L. 489 (2006).

P.J. Blount, Jurisdiction in Outer Space: Challenges of Private Individuals in Space,

33 J. Space L. 299 (2007)

Timothy G. Nelson, The Moon Agreement and Private Enterprise: Lessons from Investment Law, 17 ILSA J. Intl & Comp L. 393 (2010).

Blake Gilson, Defending Your Clients Property Rights in Space: A Practical Guide for the Lunar Litigator, 80 Fordham L. Rev. 1367 (2011).

   Space law is still new and developing. Even though mining laws and property rights have been around for quite some time, it may take a while to iron out all of the details for the province of all mankind.