The legal status of asteroid mining emanates from the historical and political background of international law and the organizations relating to space. The basic document of international space law is the 1967 Outer Space Treaty. Among the principal elements of the Outer Space Treaty is the provision that 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.1 This implies that no country or company can claim ownership of any asteroid. The Outer Space Treaty also provides that outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all countries.2 This provision, along with past practice, implies that exploring asteroids and bringing back samples, for study, is quite legal. The question of whether, or at what stage, large-scale extraction of material from an asteroid might stop being legal exploration and become illegal appropriation, is left undefined by the Outer Space Treaty. In recognition of the ambiguity of the Outer Space Treaty, on the subject of mining on the Moon and other celestial bodies, the United Nations Outer Space Committee began negotiations, in 1972, towards a treaty relating specifically to the Moon and other celestial bodies. In 1979, consensus was reached on the Moon Treaty3, which was adopted by the Committee and the General Assembly, and opened for signature and ratification.
The mining of asteroids therefore has an uncertain legal status. The appropriation of an asteroid is clearly not compatible with the Outer Space Treaty, and extensive extraction of material would certainly be questionable. The Moon Agreement offers a legal basis for mining, but it has not been accepted by the space powers and would require further negotiations, to define and establish the “international regime”. At present, there is no indication that the United States is reconsidering its position on the Moon Agreement; nor have there been any attempts to reopen negotiations in order to find a generally acceptable solution to the problem. Since the extraction of natural resources in space is still rather remote technologically, there is a general sense that the question does not require urgent action. There also seems to be a feeling that while international relations certainly have improved since the early 1980s, divisions on the issues of economic competition and technology transfer still exist, so reopening the issue would likely be unproductive.
Exploration and Extraction Rights
Despite the legal issues already encountered in the launch and transit segments of a commercial space mining venture, it is the exploration and extraction segments of the mining operation that would encounter most of the legal obstacles. In the exploration segment, ore samples will either be robotically analysed in situ or returned to the surface of the Earth for further and more detailed analysis. While this exercise of gathering samples may arguably be no different to the collection of lunar rocks during the Apollo Program missions of the United States, the crucial distinction is that in the case of mineral prospecting, the samples are collected for ultimate private commercial profit rather than public scientific gain. Accordingly, this raises issues on the lawfulness of such activities in outer space. In the extraction segment, the legal obstacles involved are more complex and difficult to resolve. The freedom of access and the principle of non-appropriation found in Articles I and II of the Outer Space Treaty, in particular, makes mineral extraction activities on celestial bodies difficult, if not impossible, to justify in law. This is because the conduct of mineral extraction activities must have, as a necessary requirement, some degree of exclusionary right in the area of asteroid being mined, a right that would be contrary to those legal principles set out in the Outer Space Treaty. Without the ability to exclude third parties, a commercial miner would have no protection for its financial investment as it would be unable to prevent a third party from extracting mineral resources from the same site. Further, the act of extraction itself, by its very nature, may contravene the principle of non-appropriation, assuming that the principle extends to prohibit the existence of exclusive property or mining rights. These tensions are symptomatic of the fundamental conflict between the principles of international space law and contemporary commercial applications of space technology. The idea that States may not own a particular spatial area to the exclusion of other States is not a new one, for as far back as the seventeenth century it was recognised already that the sovereignty of States does not extend to the high seas. However, the idea that a spatial area may be subject to the universal ownership of humankind is certainly a new concept. For example, it was proposed in the early twentieth century that the Antarctic continent should be a sanctuary for all humankind.4 Although the Antarctic Treaty does not stipulate this explicitly, it is certainly the intention of the Antarctic Treaty System for some form of common management to take place over the exploration and scientific work conducted in Antarctica by deferring the territorial claims of the claimant States.5
Resources from Mars and Other Planets
There is no uncertainty that the planets near Earth, in particular Mars, Venus and Mercury, might be possibility for investigation and extraction of mineral assets considering the assets that might be accessible in bounty on these planets. It was as of late found, for instance, that the outside of Mercury is wealthy in oxides of iron and titanium II? Venus has been thought to have comparative mineralogy, however on 1st January 2010, 100 States sanctioned the Outer Space Treaty and a further 26 States have marked it. It has been noticed that all States engaged with space exercises are involved with the Outer Space Treaty and that probably a portion of its arrangements are probably going to have solidified into standard worldwide law. Be that as it may, this is fairly questionable because of the nearly little state practice and opinion Juris on space exercises versus other topics of international law. The suggestions and impacts of the arrangements of the Outer Space Treaty as connected to the significant parts of business space mining adventures in space.
Author: Ketan Joshi, Senior Associate
1 Ibid. at Art. II of the Antarctic Treaty provides for consultative meetings in relation to the use of Antarctica for peaceful purposes, the facilitation of scientific research, cooperation and inspection, the exercise of jurisdiction and the preservation and conservation of living resources: Antarctic Treaty, opened for signature on I December 1959,402 U.N.T.S. 71; 12 U.S.T. 794; 19 I.L.M. 860 (entered into force on 23 June 1961)..
2Ibid. at Art. I of the Antarctic Treaty provides for consultative meetings in relation to the use of Antarctica for peaceful purposes, the facilitation of scientific research, cooperation and inspection, the exercise of jurisdiction and the preservation and conservation of living resources: Antarctic Treaty, opened for signature on I December 1959,402 U.N.T.S. 71; 12 U.S.T. 794; 19 I.L.M. 860 (entered into force on 23 June 1961)..
3 Supra, note 1.
4 Thomas W. Balch, The Arctic and Antarctic Regions and the Law of Nations (1910) 4 AM. J. INT’L. L. 265. See also David E. Marko, A Kinder, Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative (1992) 8 J. NAT. RES. & ENVT’L. L. 293 at 310-313; and Grier C. Raclin, From Ice to Ether: The Adoption of a Regime to Govern Resource Exploitation in Outer Space (1986) 7 J. INT’L. L. & Bus. 727 at 737-738.
5 Exploitation in Outer Space (1986) 7 J. INT’L. L. & Bus. 727 at 737-738.
27 Article IX of the Antarctic Treaty provides for consultative meetings in relation to the use of Antarctica for peaceful purposes, the facilitation of scientific research, cooperation and inspection, the exercise of jurisdiction and the preservation and conservation of living resources: Antarctic Treaty, opened for signature on I December 1959,402 U.N.T.S. 71; 12 U.S.T. 794; 19 I.L.M. 860 (entered into force on 23 June 1961). In particular, separate treaties dealing with environmental issues have been formulated, including the Convention for the Conservation of Antarctic Seals, opened for signature on I June 1972,29 U.S.T. 441; II I.L.M. 251 (entered into force on II March 1978); Convention on the Conservation of Antarctic Marine Living Resources, opened for signature on 20 May 1980, 1329 U.N.T.S. 47; 33 U.S.T. 3476 (entered into force on 7 April 1982); Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature on 2 June 1988,21 I.L.M. 859
