Why asteroid mining is the future - and a legal minefield
31 March 2016
Luxembourg recently announced its ambitious intention to enter the field of asteroid mining. According to many, this is where the future lies – the harbouring of extra-terrestrial minerals will mean Earth's dwindling natural resources are no longer a concern and the procurement of water in outer space, and its ability to be converted to rocket fuel, will revolutionise space travel. There are currently a number of companies already dedicating significant resources to space mining and it is thought a single asteroid could be worth up to a trillion US dollars.
Luxembourg plans to offer funding and investment to private enterprises for research and development in this area. It also envisages creating a legal framework by the end of this year to allegedly ensure the spoils of these galactic mining endeavours would remain the property of whichever companies had managed to recover them.
However, herein lies the black hole with Luxembourg's grand plan: there is currently no international legal framework that governs the mining of asteroids. While Luxembourg may very well proceed to pass whatever domestic legislation it may wish, as indeed the United States did with its Space Act of November 2015, it should do so only with due and proper regard to international law, which supersedes national law, if its acts are to have any meaningful effect.
The current international framework governing activities of nations in outer space is the extremely successful but now somewhat outdated 1967 Outer Space Treaty ('Treaty'), which was promulgated in the midst of the Cold War. The purpose of the Treaty was to ensure that the exploration of space by all nations would only be undertaken peacefully and in a spirit of international cooperation. Significantly, it specified that outer space was to be regarded as the common heritage of mankind and prohibited the sovereign appropriation by any State of the moon or any other celestial body. Arguably therefore, under international law, asteroids, and whatever minerals they may contain, cannot be claimed by States or their nationals.
However, those determined to pursue asteroid mining exploits have, naturally, chosen to interpret the Treaty in ways to better suit and justify their cause. Arguments have been raised, for example, that the prohibition by the Treaty against the appropriation of celestial bodies does not extend to the minerals contained within those bodies. Others have argued that the prohibition relates not to private enterprises but only to States. Whichever side of the argument is correct, three things are certain. First, international law on this subject is, at the very best, unclear. Second, no international legal framework exists which actively grants States, or their nationals, substantive rights to mine asteroids. Third, the international law governing outer space desperately needs updating if it is to keep pace with modern advances and rectify the lacunae that new technologies have revealed within it. In the meantime, investors and companies in this sector will be exposing themselves to a significant legal risk.