Who owns space? Here's what laws govern space exploration

Are you free to mine asteroids? The laws governing the exploration of space are still being debated.
Paul Ratner
Lonely Galaxy.NASA

Speaking broadly, no one owns space. But when you start looking at the particulars, a more complex answer emerges. Major organizations and investors wouldn’t be vying to get a piece of the space pie if there wasn’t amazing money to be made. Besides the 130 official government agencies around the world that are dedicated to space, Space Tech’s 2021 report identified more than 10,000 private tech companies and 5,000 top investors in the space sector besides Elon Musk’s SpaceX, which tends to get the most of the attention.

Valued currently at $350 billion and projected to reach $1 trillion in value in less than two decades, the industry focused on space is about to explode. As a new frontier is about to be opened to unbridled exploration, will it be the Wild West all over again, but in space?

The Outer Space Treaty of 1967

Much of what we accept as rules governing space was outlined by the Outer Space Treaty of 1967 (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies), a foundational agreement of international space law which was negotiated and drafted under the auspices of the United Nations. The treaty, which by now includes 111 countries as signatories, set out key principles of how Earth’s nations should think about the use of space. The treaty poetically designated space as “the province of all mankind” and declared that it must remain open to peaceful explorations and use by all equally. 

The treaty also laid out rules about the Moon and other “celestial bodies,” declaring that they cannot be claimed by anyone sovereign nation. Notably, the treaty also stated that no nuclear weapons or weapons of mass destruction should ever be placed in space, although it left the door open for conventional weapons, as well as the establishment of military space forces. 

Where is space?

One big drawback of the 1967 Outer Space Treaty (OST) is that it didn’t precisely define what outer space was. After all, where does space begin? Is Jeff Bezos really an astronaut? As Dr. Jill Stuart, editor of the journal Space Policy, explained to the BBC, "There is no official definition of outer space.” She proposed that the Karman Line is generally the standard of “physical demarcation,” starting at about 62 miles (100km) above the Earth. The imaginary line describes the boundary between our planet’s atmosphere and outer space. The atmosphere at that altitude would be too thin to support aeronautical flight. Reaching that height, aircraft would need a propulsion system that doesn’t rely on the lift generated by Earth’s atmosphere to keep going further.

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You have to fly above the Karman line to earn the astronaut’s wings. By that definition, Jeff Bezos would be considered an astronaut (going up 106km), while his fellow billionaire space racer Richard Branson would not (as he went up “only” 86km). 

The potential riches of space mining

If no one really owns space, then how do we proceed with space mining? After all, according to NASA estimates, the value of asteroids that could potentially be exploited for resources is in the neighborhood of $700 quintillion – that number is so large that if you divide it up by the number of people on Earth, each person would still get about $95 billion. And it's not just idle talk – NASA has recently unveiled the spacecraft it is planning to launch in the summer of 2022 to investigate the asteroid Psyche 16, potentially laden with valuable heavy metals. 

Space mining could be the key to replenishing the Earth’s supplies of important resources as we continue to deplete it of riches. Extraterrestrial mining is also crucial to our further expansion into space, as we need to find and utilize materials in space like metals and minerals so that we don’t have to keep bringing them from Earth. Getting these in space would allow us to build the tools and machines in space, as well as create the fuels and other materials we need to keep propelling ourselves farther and farther into the universe.

Asteroid Mining.
An artist's concept of the Dragonfly picker from Deep Space Industries that would capture asteroids for mining operations. Source: Deep Space Industries

Is it legal?

But if SpaceX or Google capture an asteroid, do they get to keep the spoils? 

In their paperIf space is ‘the province of mankind,' who owns its resources?,” space law experts Senjuti Mallick and Rajeswari Pillai Rajagopalan explain that in 2015, the United States legalized space mining through the US Commercial Space Launch Competitiveness Act by essentially embracing the doctrine of “finders, keepers,” as the researchers describe it. 

The Act states, in particular, that “A US citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained.” So, if you manage to catch one, the asteroid is all yours. 

International Space Race

Interestingly, in 2017 the small nation of Luxembourg passed a similar legal framework and has since become one of the key players in space mining research along with the U.S.  Under Luxembourg’s laws, mining companies can plunder all they can. What’s more, Luxembourg doesn’t make it a prerequisite for the company’s stakeholders to be based in the country. Just having an office in Luxembourg is enough – an arrangement that makes it possible for other countries like Japan, Portugal, and UAE to enter into mining agreements with the forward-thinking European country. 

China, India, and Russia are also looking to outer space for resources. In 2021, China test-fired what was touted as “the most powerful solid rocket motor with the largest thrust in the world so far.” The 500 tons of thrust generated is meant to power next-gen heavy-lift rockets, allowing China to be competitive in deep space exploration and space mining.

Russia’s participation in the international community’s space missions has been affected by its ongoing war in Ukraine, with the head of its space agency threatening to pull its support of the International Space Station, which may come about by 2024. Russia’s official standing on asteroid mining is that it’s not allowed by the Outer Space Treaty, which states that space should be free for "exploration and use by all States." Nonetheless, Russia has been making plans to build a lunar base to extract Helium, and as Mallick and Rajagopalan write in their report, numerous Russian private tech companies like Dauria Aerospace are involved in developing plans for drilling rigs, 3d-printer-equipped space stations, and water extraction stations on the moon.

The question of ownership persists

Russia’s stance that space mining may violate the Outer Space Treaty highlights the fact that there’s still disagreement on the laws governing this developing industry. More regulations and agreements may be necessary as the extraction of resources in space gathers steam. Alternatively, more serious conflict may follow.

Some, like Russia, view the space mining legislation by the U.S. and Luxembourg as essentially exploiting loopholes. The laws of both countries claim to allow ownership of the resources that have been taken out but not of the asteroid itself. According to Mallick and Rajagopalan, that’s essentially saying that a private organization would have the right to claim extracted resources while no national entity would be taking over the whole space body. As such, the OST would not be violated. However, some argue this does not correspond to the spirit of the Outer Space Treaty, which would have included the appropriation of resources in the prohibition against anyone owning space.

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