Why you should care

Extraterrestrial activities like mining asteroids for platinum or water are closer than ever to becoming a reality, but there are more legal questions than answers.

Time for a riddle. What’s thought to be rich in both water and valuable metals like platinum, nickel and cobalt — but could be mined within the next decade? Hint: Look up. Waaaaaay up.

In an era when billionaires such as Elon Musk and Richard Branson, plus has-been pop stars (sorry, Lance Bass), want in on the space race, it’s easy to overlook smaller, lesser-known private companies or governments with pie-in-the-sky ideas of their own. Two American outfits, Deep Space Industries and Planetary Resources, have their eye on asteroids. Both are drafting plans to send surveyors and multiton extractors into space to harvest rare minerals, while Japan’s space agency has launched a spacecraft to bring back asteroid samples after blasting a crater through one. And in Russia, there’s even a startup that has announced plans to build a $9.4 billion lunar base camp to help on the mining front in space. Yes, that’s a camp on the moon.

But bring all that excitement back down to Earth and you’ll find there’s hardly any legal infrastructure for everything from space property rights to lunar litter. After all, who owns that precious platinum when there aren’t border guards in the sky to track the movement of all those asteroids? Considering the space economy is worth an estimated $314 billion, that could turn out to be no small potatoes when we start living on Pluto. “There’s a real need for a legal foundation in order for companies to move forward with resource extraction, especially considering the massive investments involved,” says George Cecala, a spokesman for U.S. Rep. Bill Posey, a Florida Republican who proposed a bill on the matter last year.

Questions arise when companies avoid talking about owning an asteroid, and focus rather on owning resources extracted from an asteroid.

That’s where one of the coolest professions meets, well, one of the not-so-coolest: space law. There aren’t many space lawyers, though Joanne Gabrynowicz, the editor-in-chief emerita of the Journal of Space Law and a visiting professor at Beijing Institute of Technology School of Law, is one of them. She has been teaching space law and remote sensing law for more than 25 years, and is one of the few experts grappling with some stratospheric challenges. After all, no one has ever extracted resources from asteroids. And regulations passed at a national level need to be consistent with international law.

In September, Gabrynowicz, who’s a member of three federal advisory committees, testified in front of Congress about the ASTEROIDS Act, the proposed bill from Posey. She argued that resource extraction is highly ambiguous and that it would help to consider issues in the context of what other space-faring nations might think. Space, Gabrynowicz testified, is a global commons like the Antarctic and the high seas, where there are no sovereignty claims. Intended to grant U.S. companies the rights to resources they extract from asteroids, the bill has since stalled in committee.

But as we suit up to embark on this new frontier of commercial space endeavors, some observers in this field disagree with Gabrynowicz’s stance. Scott Pace, director of the Space Policy Institute at George Washington University, says, “It’s legally inaccurate and misleading to call space a global commons.” He argues the only places that are global commons are those that nations have already agreed on — such as the high seas and the air above them.

Indeed, the crux of the ongoing debate lies in interpretations of the Outer Space Treaty, signed in 1967, which forms the basis of international space law. This treaty forbids any government from claiming a celestial body like, say, the moon or a planet. Yet questions arise when companies avoid talking about owning an asteroid, and focus rather on owning particular resources extracted from an asteroid. The problem: There aren’t any clear rules on that, and those who originally worked on the treaty have since passed away. Translation? There’s a lot open to interpretation. And the scene is only expected to get more complicated as other space-hungry countries — China and India, for example — try to bolster their presence up there.

Some of those behind the nascent asteroid mining movement say regulatory talks are premature at this time. “We in this industry don’t even fully know our operating modes yet, and to talk about what companies can and can’t do is jumping the gun,” says Peter Marquez, vice president for global engagement at Redmond, Washington-based Planetary Resources.

One thing both companies and legal experts seem to agree on, however, is that something will need to be done at some point. “The question becomes: How does law keep up?” says Pace. “We don’t want to make law in advance without knowing exactly what we are dealing with, but we don’t want law to lag too far behind either.”

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