This week Planetary Resources, a company that aims to mine asteroids, is celebrating their one-year anniversary. They are toasting the date with a Google Hangout on April 24th where they will, “provide a brief year in review, current status on the development of the Arkyd series of spacecraft, and an outlook to the future of asteroid prospecting, exploration and mining!” To some people the prospect of mining space may seem overly optimistic and fantastical, but the technology is available, and both state and private actors are motivated to start doing it. Several companies have been established for the purpose of extracting natural resources from asteroids. Companies range from the fledgling Deep Space Industries to the better-known and aforementioned Planetary Resources, which has among its long list of billionaire investors two Google executives. Along with mining companies are companies who hope to provide the infrastructure in space to support these companies. The new startup company called Moon Express plans to be the FedEx of outer space.
http://www.wired.com/wiredscience/2013/04/moon-express-profile/all/
Although the technology to mine asteroids has been around for a while, the law has not kept up with the rapidly advancing technology, and international law rarely mentions private space actors, making it unclear if it is even legal to mine asteroids. Although it is understandable that the law is vague since it was drafted at a time where the privatization of space discovery was unimaginable, this uncertainty in the law makes people hesitate to invest in new technology for asteroid mining that since it might not even be legal. Several countries such as India, Japan, and China are working on launching space exploration trips that will determine the mineral composition of the moon and/or asteroids, but it is unclear if they are interested in the mineral composition for purely theoretical research reasons, or because they are interested in mining celestial bodies at some point. Because of uncertain legality of mining asteroid, countries probably would not admit to it even if there were interested in mining. You can see India’s description of its mission to map minerals here: http://www.isro.org/chandrayaan/htmls/objective_scientific.htm
The reason so many actors are interested in asteroid mining is because there are so many valuable resources to be found that are so scarce on earth that it might justify the cost to mine them in space. By some estimates, just one asteroid could contain a billion dollars in platinum alone. In addition, many asteroids have palladium, osmium and iridium which are also rare and valuable minerals.
According to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement), which entered into force in 1984, any space resources that are found, mined, or collected in outer space are to be divided evenly among states by an international body that was supposed to be formed (but was never formed). The Agreement says lunar property cannot become the property of “any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.” None of the major space powers are party to this Agreement precisely for the reason that they do not want any resources gained in space to be the “common heritage of mankind” under the Agreement. The Moon Agreement failed so badly, that it was completely ignored when it was due for review. According to Article 18 of the Agreement, a conference to review the Moon Agreement was supposed to have been convened in the 1990s, but no effort was made to do this. The Moon Agreement is considered dormant, and therefore does not prevent actors from mining asteroids and declining to divide it among all nations to be the “common heritage of mankind.”
The most influential space treaty, the Outer Space Treaty abandons the language, “common heritage of mankind” and adopts instead the notion that the exploration and use of celestial bodies, including asteroids is the, “province of all mankind.” The Outer Space Treaty, also known as The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, became effective in 1967. 101 states are a party to the treaty, and 26 states have signed but not ratified the treaty. Although treaty is not self-executing, but the U.S. is a party to the treaty and has passed it. However, most agree that the treaty has risen to customary international law.
What does it mean for the “use” of asteroids to be the “province of all mankind” though? Although elsewhere the treaty says outer space is “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” this language is generally thought to be applicable to an entire celestial body and not applied to simply taking a mile or so of minerals. So we are back to puzzling over what it means for the “use” of asteroids to be the “province of all mankind.” Although scholars have speculated that the “province of all mankind” nods to a res communes notion of property that is owned by none, and subject to use by all, these philosophical musings do not translate well to mining. If you do not own property, but you may make “use” of it, can you mine it? Companies such as Planetary Resources are betting on yes. Millions of dollars of investment are going into a company whose objective may not even be legal. The uncertainty of the law is hindering investments in asteroid mining companies and whatever investments they have attracted so far are only a fraction of what they would get if mining were clearly legal under international law. It takes billions of dollars of investment to make billions mining platinum from outer space. Regardless of the large investments Planetary Resources has raised, it needs more to be successful, and the ambiguity of international law is not helping.