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(Updated with more details.)
Today an all-star cast of adventure capitalists and space entrepreneurs—James Cameron, Larry Page, Eric Schmidt, Charles Simonyi, Peter Diamandis (creator of the X Prize), and others—announced the creation of Planetary Resources, an asteroid-mining company. (The announcement will be live streamed Tuesday off the company’s website at 1:30 p.m. ET.) In theory, asteroid mining is an enormously lucrative endeavor: a single small asteroid has been estimated to contain trillions of dollars in gold, platinum, iron, zinc, aluminum, and other minerals. The first step, its founders say, will be to launch a telescope into space to search for asteroids suitable for mining, something they claim they’ll do within two years.
Still, once suitable candidates have been identified, how would one go about getting all those minerals? As skeptics of the new company’s mission have pointed out, the challenges are enormous, and with current technology, the cost of bringing minerals back from an asteroid to Earth are so great as to dwarf the considerable market value of the minerals themselves.
There’s another, less discussed hurdle, though: figuring out whether it’s legally possible to stake a claim to an asteroid in the first place. Property rights, after all, are often a contentious issue for miners here on Earth, where we have a well-established set of laws governing the question. What would that look like in the wild west of space?
The legal framework governing space behavior is the Outer Space Treaty of 1967, which the U.S. has signed. The exact language of the relevant passage is: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Whether this means that private companies can mine asteroids is up for debate—the passage clearly bans national governments from claiming territory in space, but it doesn’t mention private actors. Because the treaty holds nations responsible for the space-related activities of their own citizens, many space lawyers (the field does exist) argue that the treaty effectively bans private “appropriation” of property in space.
Others, however, argue that there is already precedent for treating things in outer space as property. The example they point to is moon rocks—specifically the fact that the U.S. and Soviet governments traded moon rocks with each other. To trade something, after all, one has to first of all own it. Whether mineral-rich asteroids will come to be seen as enormous orbiting moon rocks in the eyes of the law remains to be seen. Meantime, some private citizens are taking the matter into their own hands, and not in the way James Cameron, et al., are. In 2001 a Nevada man named Gregory Nemitz claimed he owned the asteroid Eros and sued NASA when one of its robotic spacecraft landed on it. He asked for $20 in parking and storage fees—20¢ a year, payable in hundred-year installments. A federal judge threw out the case.