The 1967 Outer Space Treaty dedicates the Moon and other space objects as a global commons, effectively prohibiting countries from staking any legal claim in extra-Earth objects. But what about private companies staking claims in asteroids? Frans van der Dunk, professor of Space Law (that sounds more fun than dentist) at the University of Nebraska-Lincoln, says there’s a raging debate over this issue since the Outer Space Treaty doesn’t address the commercial extraction of mineral resources. This is an increasingly relevant question as several companies have proposed ideas to extract resources from nearby asteroids.

Even if the Outer Space Treaty prohibits private companies from owning asteroids, we still have to determine what rights they have to the resources on those asteroids. People will, of course, use natural resources in an irrational and inequitable manner when left to their own devices. Given that we’re 0 for 1 in managing resources to avoid global disaster (see climate change), is there any hope we can create an asteroid mining system that doesn’t result in a similar outcome?

Let’s Just Apply Existing Earth Rules. They’re working, right?

If you’ve ever visited Earth then you know we have some problems. Existing legal regimes could readily be applied to resources on asteroids, but we’re in a unique position to craft rules before resources are disturbed. Regulations surrounding the use of trees, water, fish, metals, and other Earth-based natural resources are and were largely crafted in response to unsustainable or reckless use by companies, individuals, and states.  

In creating legal systems, policymakers and courts are often forced to consider the existing interests in resources. The oil industry, commercial fishing industry, and others can often argue that a proposed rule would hurt them financially or would deprive them of an existing property interest. Underlying these arguments is the corruption of our representative democracy. Politicians who purportedly represent the people are paid by wealthy individuals, companies, and foreign entities to implement rules that actively undermine the interests of the people. This severely limits our ability to create a framework that serves the interests of the public.

Since asteroid mining has yet to begin, companies have few property and financial interests to consider and therefore may be less interested in lobbying Congress. A weak regulatory scheme for asteroid mining could upend this status quo and lead us down the path we’ve taken for Earth-based resources.

Seems Like The Current System Is Problematic. Thankfully We’re Not Talking About Replicating it for Asteroid Mining. Oh, Nevermind.

Given this, how should we approach the extraction of natural resources on asteroids by private companies? Professor van der Dunk identified two prevailing ideas in the international community: implement the existing “global commons” approach from the Outer Space Treaty and a competing idea that would treat asteroid resources as belonging to all of humanity. He believes our current “global commons” approach to the Moon is similar to how we treat international waters. Companies across the world can get licenses to extract resources from oceans based on an international licensing scheme. The United States, Luxembourg, and other European countries generally favor this approach for private companies and asteroids.

A Global Common Catastrophe

The former idea of treating asteroids and other objects as a global common resource may be similar to how we treat international waters, but it’s also similar to how we treat water in most parts of the United States. Water that flows across borders is generally viewed as a common resource absent legislation to the contrary; no one party is entitled to divert or drain the water. As we mentioned in our latest post about the Florida-Georgia water wars, this idea can quickly become irrelevant if one party takes so much water that it becomes impractical for a court to stop the use in favor of another party.

The common goods or global commons model is rife with additional problems absent a strong, global licensing scheme. In addition to people simply taking too much of a good in a tragedy of the commons manner, the taking and using of common goods produces pollution either directly (CO2) or indirectly (fewer trees to reduce CO2 levels). This requires legislation, such as the Clean Air Act to regulate the distribution of those externalities. This regulation is subject to political interests and since political interests are largely motivated by the wealthy, the good of humanity is often not the end goal.

The Humanity Approach Is Hypocritical and Possibly Unworkable

In contrast, Russia, Brazil, and others have floated the idea of preserving space resources for humanity. Meaning, the extraction of resources from asteroids must benefit all humans, not just individual companies or countries. Something that broad is perhaps unworkable as it might require weighing the various interests of billions of people to determine how extracted resources must be used in order to benefit all of humanity.

It seems a bit odd to propose treating objects in outer space as resources for humanity while actively doing the opposite for resources here on Earth. Air and water clearly have a more immediate impact on the lives of humans than nickel or other metals on far away asteroids. Cutting down forests in the Amazon or Siberia affects everyone on Earth. Dust from Africa routinely travels to Texas while wildfire smoke in California often makes its way to Europe. The global community relies on forests around the world not only for oxygen and carbon sequestration, but also for discovering new medicines and finding ways to create better technology. While extracting natural resources provides clear benefits for humanity, many harms exist that have long gone unchecked.

What If Earth Had a Constitutional Amendment?

Maybe some hybrid of the humanity and global commons models is needed. Perhaps licensing schemes could be created, but they would be subject to underlying human and planetary interests. Imagine if the US Constitution contained some amendment that guaranteed natural resources must benefit all Americans and not imperil the health of the environment. This would, theoretically, require politicians and courts to analyze all of the costs and benefits to humans and the planet before implementing rules. The interpretation of such an amendment would largely be based on the political makeup of the Supreme Court, but at least an amendment would force a public debate on the issue.

Mining asteroids may not present the same immediate danger to humans as the cutting of trees or the polluting of water, but economic, social, and even Earth-destroying issues would arise. Heavy or reckless mining could alter an asteroid to such an extent that it’s displaced from its current trajectory and put on one that threatens Earth (Armageddon 2?). What about an asteroid harvesting alien viruses? Both may be unlikely, but such scenarios should at least be considered. 

Fragments of Comet Shoemaker-Levy 9 slamming into Jupiter in 1994. Credit: Max Planck Institute for Astronomy

We would also have economic and geopolitical considerations. A company or country could effectively monopolize the market for a particular metal if they were allowed to mine and sell huge amounts of it. Of course, this may result in less disturbance to the Earth if we can obtain a needed metal from an asteroid. All of these issues would need to be addressed in a licensing scheme and publicly weighed against some underlying, enforceable principle (similar to a Constitutional amendment) that requires asteroid resources to be used in a way that benefits humans while mitigating costs.

There are clearly numerous questions that must be considered in allowing companies to mine asteroids beyond asking how much will be taken and how much will remain. Unlike with resources on the Earth, we’re in a position to create rules surrounding asteroid mining before damage occurs. The success of any legal framework requires our unprecedented existing global unity to continue. That’s something that looks less likely by the day.

Cover Photo: Close up view of the asteroid Eros taken by NASA in 2000.