Asteroid mining is the extraction of valuable resources from asteroids in outer space. While the idea of asteroid mining is not particularly new, with the first written reference found in the 1898 book “Edison’s Conquest of Mars,” by Garrett Serviss, the idea did not gain real traction in the scientific community until recently.
The interest in asteroid mining is not limited to scientists, however, since at least two US companies are currently researching the idea and its feasibility. Planetary Resources and Deep Space Industries are two notable American companies that are exploring asteroid mining.
The interest is so high that the United States recently passed a law that contains an article that directly concerns asteroid mining and legalizes it. This law is the Commercial Space Launch Competitiveness Act (CSLCA), which was signed into law by President Obama in 2015.
The CSLCA addresses resource extraction in Article IV, and states, “A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.”
The issue here is that US law is in opposition to a UN treaty, to which the US is a signatory. The Outer Space Treaty is one of the oldest and most important agreements in the history of international space policy.
The Outer Space Treaty was drafted by the United Nations (UN) in the 1960s and was approved by the UN General Assembly in 1967. The United States and more than 100 other countries are party to the Treaty, which was the basis for multiple other legal agreements like the Liability Convention and the Moon Agreement.
Under the Outer Space Treaty, asteroid mining is illegal, since it is an appropriation of a celestial body by a State. Since the human being or organization that is doing the resource extraction is under the purview of some State, that State is responsible for the actions that are done by the nationals or organizations that are doing the mining.
This responsibility was given to the State by the sixth article of the OST and is strengthened by the Liability Convention of 1972. Since the State is responsible and liable for the actions done by their nationals, this means that the State could be interpreted as appropriating the asteroid.
The United States, however, has a different argument when it passed the Commercial Space Launch Competitiveness Act in 2015, which legalized resource extraction from asteroids to an extent. The United States’ argument was that the government was not directly approving the missions of the private companies, which had the rights to the resources that they extracted.
The CSLCA only applies to private US companies or individuals that engage in space resource extraction. NASA activities do not fall under the purview of the CSLCA, including the recently canceled NASA Asteroid Retrieval Mission.
The best metaphor to use for how the CSLCA approves space resource extraction is this: the private companies are going out into the wilds to find a mine, and then extracting gold from the mine.
At no point do they try to claim the mine for themselves or for their country of choice, but they do claim the materials they take out of the mine.
Basically, the miners go in, get the metaphorical gold, and get out. They do not plant the flag in the ground, they do not say that they own the mine, and they do not pass “go” and claim the $200.
Since no asteroid mining companies that have reached the operational stage yet, there has not been any confrontation over the rules, though there has been extensive debate and discussion over which legal document holds more weight. But multiple companies are exploring asteroid mining and other forms of resource extraction, so the idea will not die anytime soon and neither will the conflict.