SHANGHAI – If “Titanic” director James Cameron were to dig up a giant gold nugget on an asteroid, would it be his to take back to Earth and sell? U.S. and international law are just a bit unclear on this point, and as a result two members of Congress have introduced legislation — the Asteroids Act — on which the House planned to hold hearings this week.
For a Congress often criticized for not being farsighted enough, this might be thinking too far ahead. Still, the rapid development of the U.S. private space industry, and the potential for unwelcome conflicts with rival nations such as China and Russia, make this legislation more than science fiction.
Nobody is going to start mining asteroids this year, or even this decade. But that hasn’t stopped entrepreneurs — including Cameron, who is an investor in and adviser to Planetary Resources, an asteroid prospecting company — from dreaming and seeking funding. Next year Virginia-based Deep Space Industries is planning to launch a fleet of 55-pound satellites to find asteroids worth sampling, followed by craft designed to dig out and bring rocks back to Earth.
If other miners follow, do other countries have the right to object? Under the terms of the 1967 Outer Space Treaty — to which the U.S., Russia and China are all parties — space, “including the moon and celestial bodies, is not subject to national appropriation by claim of sovereignty.” Further, parties to the treaty are responsible for ensuring that private bodies under their jurisdictions (including corporations) abide by the treaty. That means Cameron and Planetary Resources can’t plant a flag and claim an entire asteroid for themselves.
Nothing stops them legally from digging out a chunk of it.
The Asteroids Act is intended to offer entrepreneurs like Cameron some assurance of property rights in space, and thus to encourage further development of the space industry. The act takes a simple line: If you extract a resource from an asteroid, it’s yours.
If there’s a conflict with someone else, the treasure goes to whoever got there first. This is, in effect, freedom of the seas as applied to space.
There’s one glaring weakness, though: The act as it’s written applies only to U.S. companies. In the short term, that’s workable. The Chinese and Russian space programs are far behind both the official U.S. space program and private companies, and they’re unlikely to catch up soon.
Still, that doesn’t mean they aren’t interested in having a level playing field once they’re ready to compete. Last November, a top Chinese scientist outlined a long-term program for lunar exploration that envisioned large-scale mining of the moon’s surface. Such ambitions should have U.S. policymakers thinking seriously about using this opportunity to draw China and Russia into the orbit of international agreement, if not law. One possible approach would be to insert a “reciprocal recognition” provision in the Asteroids Act, whereby the U.S. would seek to sign agreements with other space-faring nations that mutually recognize one another’s mining claims.
There is precedent for precisely this kind of agreement in U.S. law related to mining of the deep-sea bed (also a field that’s more speculative than real at the moment). Rather than accept an international authority to regulate such activity (under the United Nations Convention on the Law of the Sea, or UNCLOS), U.S. law since the early 1980s has made provision for reciprocal recognition of deep-sea claims.
In the mid-1980s, the U.S. extended reciprocity to the U.K., Japan, France and several other countries with similar laws. As applied to space, these agreements would not only offer assurances of long-term property to space prospectors (and perhaps attract a broader range of international investors) but also represent a small but important step forward in building trust and perhaps even encouraging global collaboration in space ventures.
Given the troubles the U.S. and others are having with China’s maritime claims in the South China Sea, a little foresight now could pay off in the future, however distant it may be.
Adam Minter, based in Shanghai, covers Asian politics, culture, business and junk.