By Breck Hapner
December 6, 2013
“If the Earth gets hit by an asteroid, it’s game over. It’s control-alt-delete for civilization.”
“Asteroids do not concern me, Admiral.”
—Darth Vader, The Empire Strikes Back
The Delaware County Law Library is one of my favorite places. I don’t get to spend a lot of time there, but there are several reasons to love it. First off, it is housed in the Old Jail and Sheriff’s Residence. Built in 1878, it is one of the most imposing and impressive of Delaware’s historical buildings. Second, it is packed to the gills with law books, legal magazines and other legal research materials. Third, it is run by local attorney Judy Maxwell, who serves as Law Librarian in addition to many other duties.
Judy is kind enough to occasionally send a new volume over to the Juvenile Court that she thinks would be of interest. Last month, she sent me “The Little Book of Space Law” by Matthew J. Kleiman. As legal texts go, it is, indeed, a little book, running just 170 pages and weighing about a pound and it is clearly intended to be read by both a legal and non-legal audience.
The most interesting section of the book is the final one, as it deals with the cutting edge of space technology- the ownership of non-planetary celestial objects and the resources that might be found upon them. Entrepreneurs like Elon Musk are already forming companies whose sole purpose is to travel to and mine resources from asteroids. These companies are not ignoring the laws that apply to outer space, but they are operating - literally and legally - in a vacuum.
The Outer Space Treaty, adopted by the United States in 1967, provides that no nation can claim any celestial body as being the property of that nation. It also prohibits nations from giving license to private agencies to do so in the way that charters were given to entities like the Dutch East India Company during the age of New World exploration.
Those treaty prohibitions have not prevented individuals from claiming land on their own. In 2004 an American by the name of Gregory Nemitz attempted to claim a near-Earth asteroid for the purposes of establishing a mining colony on it. He roughly estimated the value of the asteroid to be 1.584 sextillion dollars. When NASA would not respond to his requests, he filed a declaratory judgment action in federal court in San Francisco. Prior to filing the suit, Mr. Nemitz had sent NASA a bill for $20.00 for “parking” a spacecraft on his asteroid. The government responded to his lawsuit, noting that he had “no legal basis” on which to make his claim and, not surprisingly, both the trial court and the 9th District Court of Appeals agreed.
The Nemitz legal action reinforces the conclusion that a private individual has no legal right to make an Earthly claim to own as asteroid. The question of mining rights is wholly different though. Numerous articles have been written on the subject and published everywhere from legal journals to magazines like Popular Mechanics. Many legal scholars draw a comparison with real and personal property on Earth. They conclude that if an asteroid is too big to move then it counts as a “celestial body” and can’t be claimed. But if you can reach out and grab that asteroid and bring it back to Earth, then it might be personal property and would not be covered by the Outer Space Treaty’s prohibition on owning celestial bodies.
Others draw comparisons with underwater salvage operations. In those cases, simply sending an unmanned drone to an underwater object and leaving a marker there may be enough to lay some claim to the treasures that lie within. The same may ultimately be the case for space mining.
These questions are conveniently remote right now and so no one is pressed to provide any solution. As technology advances and companies move closer to actually capturing and harvesting an asteroid there will be both a space race and a legal race to determine ownership in the next great age of exploration.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Probate/Juvenile Court and a former Assistant Prosecuting Attorney.