Space Lawyers Are A Thing, And We Talked To One About The Future Of Cosmic Mining

Humanity is now one step closer to the kind of disastrous extraterrestrial mining operation depicted by James Cameron in Avatar. Incidentally, Cameron is one of the Americans who stands to benefit by a new bill that sailed through Congress this week.

The U.S. Commercial Space Launch Competitiveness Act would allow private companies to own a piece of space. More specifically, the bill, which now goes to President Barack Obama to sign, will allow companies to own any resources they mine from an asteroid or moon.

The financial gains stand to be huge - one large asteroid that passed by Earth this summer was estimated to be worth more than the entire economy of Japan. (The platinum core at that astroid’s center alone was valued at more than $5 trillion dollars.)

This potential explains why people like Cameron, along with Ross Perot Jr., Larry Page and Google's Eric Schmidt, have invested in Planetary Resources Inc., a company that is drawing up plans to mine astroids and building the necessary technology to do it. (The company has already launched a test vehicle into orbit.)

Planetary Resources says that its mining operation won't just pay dividends to investors, but will also aid further planetary exploration, supplying rocket fuel and water to astronauts and space tourists.

“Many years from now, we will view this pivotal moment in time as a major step toward humanity becoming a multi-planetary species,” Planetary Resources co-founder Eric Anderson declared in a press release after the bill passed through the Senate.

But not all industry observers are thrilled by the proposed law. Some space lawyers (yes, that's a thing) argue that the bill would violate the Outer Space Treaty. A number of countries including the United States and Russia have signed the document, which states that nations can’t own territories in space. Others warn that the the bill leaves out key details necessary for establishing a regulatory structure for the industry.

I spoke with Dr. Frans von der Dunk, a professor of space law at the University of Nebraska-Lincoln, to ask about the intricacies of the new bill, the future of space mining, and how someone becomes a space lawyer, anyway. This conversation has been condensed and edited for clarity.

Is it currently legal for private companies to mine astroids?

Unfortunately, the current status of international law, notably the 1967 Outer Space Treaty (which was drafted when nobody seriously thought this could happen), leaves some room for doubt. Those who are for various reasons not positively inclined to commercial exploitation of outer space use this to argue that it is not legal.

In my view, however, it is legal as long as somehow authorized and supervised by the relevant country, in this case the United States. The bill thus is a first step towards such regulation; it already provides that those going into outer space to mine, as long as in conformity with international law, would actually be entitled to property rights over resources once harvested.

One issue with the Outer Space Treaty (the only really relevant international document here) was that it had only declared outer space to be non-appropriable by states, essentially like the high seas. Some draw the conclusion from this that you then need an international regime and international permission under such a regime to actually start mining, but the comparison with the high seas for me means that you can certainly, in principle, extract mineral resources. After all, the lack of territorial sovereignty of any country over the high seas has prevented nobody from actually fishing out there.

I know that some industry observers have been critical of the bill that just passed Congress. Where do you stand on it and why?

As long as one realizes that this is a first step, I think it is a careful and balanced step towards allowing bona fide commercial companies to start investigating and investing in such ventures. This should also be seen as an invitation to the international community to consider following this unilateral, national initiative and work towards a more globally applicable legal regime, presumably along the same lines.

Do you see any possible unanticipated consequences if this bill does become law?

The world is full of surprises, which is certainly also true for outer space and space activities. But as this bill is a mere first step, it should be flexible enough to accommodate unexpected developments in the course of the expected research, investigation and planning stages, which of necessity will have to precede actual exploitation.

Only once actual exploitation would rapidly come closer do we on the one hand need to establish more detailed laws and regulations, and do we on the other hand also perhaps actually know enough to do so.

How close do you think we are to the time when private companies will be landing on astroids and drilling? Is all the technology in place already?

From what I understood -- I am merely a lawyer -- it would probably be between 10 and 20 years or so before we’d see the first actual drilling going on. The first phase is clearly reconnoitering and analyzing, first from earth, then, once a few serious candidate asteroids have been singled out, up close by robotic missions probably not even yet landing. The techniques for such first-phase missions are certainly there, those for the close-up analysis probably also, but actual mining is a different ballgame. If we see how much difficulty the multiple-nation European Space Agency had in safely landing a robotic probe on the P-67 comet, that makes one pause -- although on the other hand, a near-earth asteroid would seem to be a much easier target.

What do you think the true monetary value of space mining is? Is it really a cost-effective technique, in your opinion? Or are companies drawn in for the wow factor more than financial gain?

I don’t think companies are in it only for the wow factor. Although the angel investors certainly display an amount of idealism and adventurism (just picture the likes of Richard Branson and Elon Musk) they also see a serious chance for business, even if long-term. (And even if they may turn out to be very wrong, too.)

I cannot give you any dollar figures, and much of that has yet to be sorted out. (Although I also suspect the two companies closest to going there, Planetary Resources and Deep Space, may have done some market studies which are commercially confidential). But I remember that Apollo 17 astronaut Jack Schmitt made a fervent plea for harvesting Helium-3 on the Moon, 24 tons of which supposedly could fuel the entire United States for a year.

There are generically three scenarios at play here. One, the actual use of harvested resources will also be in outer space, e.g. the use of water for rocket fuel for further missions or human habitats on Mars. The cost of hauling anything in outer space is still so immense that being able to refuel in outer space may well present a very interesting business case. Two, the use of the harvested resources will physically take place in outer space, but through some technique or other result in the generation of energy/electricity down on earth. (I have no clue whether that is scientifically feasible, but have seen this several times being suggested.) Three, one actually takes extremely valuable minerals or other resources back to earth, allowing perhaps also to substitute for terrestrial mining, or to be added to minimal existing terrestrial deposits.

How did you get into space law? And how has the field changed since you first entered it?

Somewhat by accident, actually. I was working as a young assistant with a professor of international law at Leiden University when a position as co-director of space law became available. At the time -- with some exaggeration -- space law was a rather embryonic field, mainly consisting of some international treaties of general or particular scope plus a bit of institutions.

Since then, however, major paradigm changes occurred and I was allowed to grow with the discipline. Most importantly, outer space moved from being a superpower-dominated domain largely used for military and related purposes to a multifaceted domain with many, by now indispensable, civil, social, economic and commercial implications and angles, drawing numerous smaller states as well as leading developing countries into the game, plus an ever increasing array of private entrepreneurs in increasingly diverse fields of space, space services and space applications.

I just finished a Handbook on Space Law (with the help of 11 co-authors) which runs well over a 1,000 pages. The alumni of our unique LLM program in space, cyber and telecommunications law at the University of Nebraska-Lincoln are getting jobs all over the field as a consequence.