While asteroid mining is still just science fiction, companies such as Planetary Resources are already preparing to mine the sky. While space mining sounds awesome, lawyers are already hard at work murdering the awesomeness with legalize. President Obama recently signed the U.S. Commercial Space Launch Competitiveness Act which seems to make asteroid mining legal. The key part of the law is that “Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.” More concisely, the law makes it so that asteroid mining by U.S. citizens would not violate U.S. law.
While this would seem to open up the legal doors to asteroid mining, there are still legal barriers. The various space treaties, such as the Outer Space Treaty of 1967, do not give states sovereign rights in space. As such, there is no legal foundation for a state conferring space property rights to its citizens on the basis of its sovereignty. However, the treaties do not forbid private ownership in space—as such, any other nation could pass a similar law that allows its citizens to own property in space without violating the laws of that nation.
One obvious concern is that if multiple nations pass such laws and citizens from these nations start mining asteroids, then there will be the very real possibility of conflict over valuable resources. In some ways this will be a repeat of the past: the more technological advanced nations engaged in a struggle to acquire resources in an area where they lack sovereignty. These past conflicts tended to escalate into actual wars, which is something that must be considered in the final frontier.
One way to try to avoid war over asteroid resources is to work out new treaties governing the use of space resources. This is, obviously enough, a matter that will be handled by space lawyers, governments, and corporations. Unless, of course, the automated killing machines resolve it first.
While the legal aspects of space ownership are interesting, the moral aspects of ownership in space are also of considerable concern. While it might be believed that property rights in space is something entirely new, this is clearly not the case. While the location is clearly different than in the original, the matter of space property matches the state of nature scenarios envisioned by thinkers like Hobbes and Locke. To be specific, there is an abundance of resources and an absence of authority. As it now stands, while no one can hear you scream in space, there is also no one who can arrest you for space thievery.
Using the state of nature model, it can be claimed that there are currently no rightful owners of the asteroids or it could be claimed that we are all the rightful owners (the asteroids are the common property of all of humanity).
If there are currently no rightful owners, then it would seem that the asteroids are there for the taking: an asteroid belongs to whoever can take and hold it. This is on par with Hobbes’ state of nature—practical ownership is a matter of possession. As Hobbes saw it, everyone has the right to all things, but this is effectively a right to nothing—other than what a person can defend from others. As Hobbes noted, in such a scenario profit is the measure of right and who is right is to be settled by the sword.
While this is practical, brutal and realistic, it does seem a bit morally problematic in that it would, as Hobbes also noted, lead to war. His solution, which would presumably work as well in space as on earth, would be to have sovereignty in space. This would shift the war of all against all in space (of the sort that is common in science fiction about asteroid mining) to a war of nations in space (which is also common in science fiction). The war could, of course, be a cold one fought economically and technologically rather than a hot one fought with mass drivers and lasers.
If the asteroids are regarded as the common property of humanity, then Locke’s approach could be taken. As Locke saw it, God gave everything to humans in common, but people have to acquire things from the common property to make use of it. Locke gives the terrestrial example of how a person needs to make an apple her own before she can benefit from it. In the case of space, a person would need to make an asteroid her own in order to benefit from the materials it contains.
Locke sketched out a basic labor theory of ownership—whatever a person mixes her labor with becomes her property. As such, if asteroid miners located an asteroid and started mining it, then the asteroid would belong to them. This does have some appeal: before the miners start extracting the minerals from the asteroid, it is just a rock drifting in space. Now it is a productive mine, improved from is natural state by the labor of the miners. If mining is profitable, then the miners would have a clear incentive to grab as many asteroids as they can, which leads to a rather important moral problem—the limits of ownership.
Locke does set limits on what people can take in his proviso.: those who take from the common resources must leave as much and as good for others. When describing this to my students, I always use the analogy to food at a party: since the food is for everyone, everyone has a right to the food. However, taking it all or taking the very best would be wrong (and rude). While this proviso is ignored on earth, the asteroids provide us with a fresh start in regards to dividing up the common property of humanity. After all, no one has any special right to claim the asteroids—so we all have equal good claims to the resources they contain.
As with earth resources, some will probably contend that there is no obligation to leave as much and as good for others in space. Instead, those who get there first will contend that ownership should be on the principle of whoever grabs it first and can keep it is the “rightful” owner.
Those who take this view would probably argue that those who get their equipment into space would have done the work (or put up the money) and hence (as argued above) would be entitled to all they can grab and use or sell. Other people are free to grab what they can, provided that they have access to the resources needed to mine the asteroids. Naturally, the folks who lack the resources to compete will remain poor—their poverty will, in fact, disqualify them from owning any of the space resources much in the way poverty disqualifies people on earth from owning earth resources.
While the selfish approach is certainly appealing, arguments can be made for sharing asteroid resources. One reason is that those who will mine the asteroids did not create the means to do so from nothing on their own. Reaching the asteroids will be the result of centuries of human civilization that made such technology possible. As such, there would seem to be a general debt owed to human civilization and paying this off would involve also contributing to the general good of humanity. Naturally, this line of reasoning can be countered by arguing that the successful miners will benefit humanity when their profits “trickle down” from space.
Another way to argue for sharing the resources is to use an analogy to a buffet line. Suppose I am first in line at a buffet. This does not give me the right to devour everything I can with no regard for the people behind me. It also does not give me the right to grab whatever I cannot eat myself in order to sell it to those who had the misfortune to be behind me in line. As such, these resources should be treated in a similar manner, namely fairly and with some concern for those who are behind the first people in line.
Naturally, these arguments for sharing can be countered by the usual arguments in favor of selfishness. While it is tempting to think that the vastness of space will overcome selfishness (that is, there will be so much that people will realize that not sharing would be absurd and petty), this seems unlikely—the more there is, the greater the disparity between those who have and those who have not. On this pessimistic view we already have all the moral and legal tools we need for space—it is just a matter of changing the wording a bit to include “space.”