James T. Mangan (right), the man who owned the Universe, circa 1949
On December 20, 1948, Chicago publicity man James T. Mangam laid claim to sole ownership of the Universe (excluding only the Earth), christening his domain 'the Nation of Celestial Space' and crowning himself its 'First Representative.' After filing his claim with the Cook County, Illinois Recorder, Mangan mailed declarations to the heads of seventy-four nations and applied to the United Nations for a seat in its General Assembly. Far ahead of his time in more ways than one,
Mangan proclaimed what would today be recognized as fine libertarian-corporatist principles underlying his new Nation:
Mangan has very definite ideas of what kind of a country Celestial Space will be. He says the new nation will not be a democracy “as I don’t like voting.” There will be no taxes because “I don’t like taxes.” It will have no citizens, only Participants - people who buy a dollar’s worth of space. The rights of Participants are limited to “suggestion rights or thinking rights,” nothing more. Mangan is inclined to view his country as a kind of intellectual tyranny, but he thinks it will be very popular.
Laughable as the notion of owning the Universe obviously is (neither the United Nations nor any of the countries Magnan reached out to for recognition ever replied to him), today a new generation of Mangan's Syndrome sufferers - including such luminaries as Google's Eric Schmidt and Larry Page, Amazon's Ram Shriram, Microsoft's Charles Simonyi, Ross Perot Jr., Richard Branson, Peter Diamandis, and James Cameron - all investors in the would-be asteroid mining
scam venture,
Planetary Resources - as well as similar wannabe Lords of the Universe at competitor
Deep Space Industries, propose straight-faced that whoever first sets robotic 'foot' on any space property should have the exclusive right to destroy it in order to exploit its natural resources
without government 'interference'.
Predictably enough, these and other players at godhood have begun to lobby the U.S. Congress...with some early success...to radically revise what currently passes for the Law of Space, to enable them to export all the worst aspects of manifest destiny to infinity and beyond, in order to insure that the blessings of Creation end up in their own pockets. Follow me below the fold to catch up on these titans' current legislative shenanigans and their (perhaps) unintended consequences for the future course of human history.
The potential financial rewards of mining near-Earth asteroids (considered the most feasible near-term targets) are certainly compelling. In an influential scientific paper published in 2010, University of Strathclyde researchers J.P. Sanchez and C.R. McInnes conducted a quantitative analysis of the numbers, types, and sizes of near-earth asteroids, what it would cost (energetically speaking; not in financial terms) to 'shepherd' a few select specimens into earth orbit where they could be 'mined' for their water and metal content, and what the resulting yield of valuable materials might be.
Exploitation of the largest expected object found within a 100 m/s budget, a 24-m asteroid, could supply from 107 kg to 4x107 kg of asteroid material, depending on composition and density. If this object was a hydrated carbonaceous asteroid a million litres of water could possibly be extracted (considering an asteroid of density 1300 kg/m3 and 8% of its weight in water). However, if this object was an M-class asteroid (density 5300 kg/m3, on the order of thirty thousand tonnes of metal could potentially be extracted and even a tonne of Platinum Group Metals (PGM) (88% of metal assumed and 35ppm of PGM). The latter resource could easily reach a value of fifty million dollars in Earth’s commodity markets. If the ∆v budget is increased to 1 km/s, one 190-m diameter object should be accessible. This corresponds to more than 300 million litres of water or more than 10 million tons of metal and 600 tons of PGMs valued at 30 billion dollars.
To put these numbers in perspective, consider the super-gee-whiz graphics and language Planetary Resources uses to pitch itself to prospective investors:
Never mind that Sanchez and McInnes' analysis makes it pretty clear that a 500 meter diameter solid metal asteroid is too rare, too big, and too energetic to be a practical mining target any time in the foreseeable future. Just keep repeating "two point nine
trillion dollars!" Trust me - this is an opportunity your great-great-great-great grandchildren want to get in on the ground floor
today.
While space-platinum may be something of a stretch, a superficially more plausible resource that could be mined from near-earth asteroids is plain-old water: carbonaceous asteroids are about 8% water by weight (locked up in their rocky crystal structure). Just add photovoltaic electricity generated from sunlight (lots and lots of electricity) and voila: you have millions of liters of water. Then add even more lots and lots of electricity and hey presto: you have hydrogen and oxygen gases which, when mixed and ignited, constitute the most efficient rocket fuel known to man.
Never mind that the process of manufacturing water from rocks is so energetically expensive that no one in his right mind has ever even dreamed of doing this right here on terra firma (where it would be much, much easier than in space). The important question is - how much could you sell water for way out in the cosmos? No one knows, of course (since there is as yet no market for it there) - but consider Elon Musk's dream of building a human colony on Mars by 2026. If, on his way there, he happened to fly past your 'gas' station displaying the sign "Last Chance Gas For 225,000,000 kilometers" how much might he be willing to pay for a quick fill-up? This is the promise that Planetary Resources and Deep Space Industries want investors to keep in mind.
Space Law: The Fly in the Ointment
Daunting as are the technological challenges of asteroid mining, an even greater problem currently stands between astro-entrepreneurs and their goal: the lack of an established legal structure in space to secure the property rights of prospective investors and the mining companies they would own. Any savvy investor considering spending, say, $500 billion to mine a trillion dollars worth of space-platinum would certainly wish to be very sure indeed that his company would hold a clear and unchallenged title to the resulting ingots. But, today, that's not at all clear.
Currently, the basis of international space law rests on the Outer Space Treaty of 1967 (OST), to which 102 countries (including all current spacefaring nations) are signatories. Articles relevant to the current concerns of private space-mining companies include, in part (emphasis added):
I. The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
II. 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.
VI. States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
These provisions of the OST are sufficiently vague (and perhaps intentionally so) that the decades following its ratification have seen continuous and, ultimately, unresolved debate regarding what they may or may not mean for property rights in space. On one side are legal scholars who believe that, at a minimum, the OST leaves the question unresolved or might even bar private ownership of space resources:
The moon and other celestial bodies are res extra commercium ["a thing outside commerce"], to use the Roman law term. Nor can an individual establish a right of property simply by claiming it. Only states can have sovereignty and thereby invest others with property rights. History is littered with claims by individuals and others that states have refused to recognize, and that 'recognition' is necessary under international law. None have grounded a legitimate assertion of a right of property valid against all comers and to which the legal system of states will give effect.
It follows that the various entrepreneurs who purport to sell portions of the Moon, Mars, Venus, or any other celestial body cannot and do not transfer any sort of legal title to 'purchasers' from them [....] A valid right of property to immoveable estate can exist only within a legal system established by a state and in relation to property over which that state has sovereignty. Since state claims to sovereignty in space cannot exist, neither can title to immoveable property on celestial bodies in space [....] The Moon and other celestial bodies in space as such are not available for ownership either by private individuals or by companies. The position as to materials recovered from the Moon and celestial bodies may, however, be different, or may be different in the future.
Balanced against this argument are
those of legal scholars who appear to believe that property rights are natural rights of man of the first order (a familiar argument of libertarians) and thus extend to infinity and beyond:
Although Article II of the Outer Space Treaty prohibits the acquisition of territory in outer space, Article VIII mandates that a state retain jurisdiction and control over objects that appear on its registry [....] Everything onboard a spacecraft is subject to this quasi-territorial jurisdiction, including resources gathered from an asteroid and taken onboard a space object. Such jurisdiction can include the property laws of the state of registry. This situation is similar to the extension of US intellectual property law to inventions made aboard a US registered space object, thereby providing a precedent for the extension of US property law into outer space notwithstanding a lack of territorial sovereignty.
Into the Breach: the ASTEROIDS Act
Given these ambiguities and fundamental differences of opinion regarding property rights in space, the best that may currently be said is that the situation is currently uncertain. But uncertainty is notoriously the bane of investors, who are rightly loath to throw their money into a venture whose legal status is undefined. And thus this uncertainty is likewise the kiss of death for would-be astro-entrepreneurs seeking massive investments in their high-stakes dreams.
In an apparent effort to pave the way for such entrepreneurs, on July 10th of this year Congressman Bill Posey (R; FL-08) and a bipartisan group of cosponsors (10 Democrats and 6 Republicans) introduced H.R. 5063, the American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act, "to promote the development of a commercial asteroid resources industry for outer space in the United States and to increase the exploration and utilization of asteroid resources in outer space." Key provisions of the ASTEROIDS Act in its current form include (emphasis added):
Sec. 51301: The President, through the Administration, the Federal Aviation
Administration, and other appropriate Federal agencies, shall--
(1) facilitate the commercial exploration and utilization of asteroid resources to meet national needs;
(2) discourage government barriers to the development of economically viable, safe, and stable industries for the exploration and utilization of asteroid resources in outer space in manners consistent with the existing international obligations of the United States;
Sec. 51302: Legal framework
(a) Property Rights.--Any resources obtained in outer space from an asteroid are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law.
(b) Freedom From Harmful Interference.--As between any entities over which the United States can exercise jurisdiction, any assertion of superior right to execute specific commercial asteroid resource utilization activities in outer space shall prevail if it is found to be first in time, derived upon a reasonable basis, and in accordance with all existing international obligations of the United States.
(c) Safety of Operations.--A United States commercial asteroid resource utilization entity shall avoid harmful interference to other spacecraft.
(3) promote the right of United States commercial entities to explore and utilize resources from asteroids in outer space, in accordance with the existing international obligations of the United States, free from harmful interference, and to transfer or sell such resources
If the language of H.R. 5063 sounds distinctly laissez-faire - or even servile - toward the infant space mining industry, that appears to be a feature, not a bug - at least judging by the
introductory remarks of Space Subcommittee chairman Steven Palazzo (R; MS-04) during the subcommittee's first hearing on the bill earlier this month:
It is my sincere hope that the Administration will stop spending time on poorly designed
and executed missions...and look to the private sector and scientists for input
on the best way to maximize our limited resources.
Does ASTEROIDS Put the Cart Before the Horse?
As U.S. history's first legislative word regarding resource exploitation in space, the ASTEROIDS Act, should it become law and withstand subsequent legal challenge, will undoubtedly provide precedents for court rulings and additional legislation for centuries to come and throughout billions of cubic kilometers of space. It therefore seems important to ask (and right now, please):
- Is a unilateral State declaration of laissez faire corporatism and unfettered private property rights the appropriate first step in crafting mankind's relationship with the Universe?
- Is a first come first served, all-you-can-eat, substantially unregulated and 1%-favoring capitalism the economic and social model that mankind chooses to export to infinity and beyond?
- Does the often sordid and violent history of the colonization, westward expansion, and exploitation of America argue for a more thoughtful and carefully crafted approach to our next expansion - into the final frontier of the cosmos?
- Doesn't the very real potential for catastrophic error (and planetary disaster) during the "shepherding" of asteroids into Earth orbit argue for international (as opposed to individual and wildly divergent State-based) regulation of these activities?
- Shouldn't our growing understanding that organic life is unlikely to be a phenomenon unique to Earth alone morally require us to begin our exploitation of celestial bodies with a Bill of Rights for life throughout the universe?
Reasonable people can (and will) differ vociferously regarding the answers to these questions, which is exactly why they need to begin to be addressed now -
before we begin to sort out the legal details regarding property rights with respect to materials mined from asteroids. And different spacefaring nations will, no doubt, see these issues very differently, which is why such questions need to be tackled at the global level, via international treaty administered by the United Nations, rather than unilaterally via a hodge-podge of conflicting national laws and the inevitable violent conflicts they engender.
Recent history teaches that a meaningful international agreement - with real teeth to it - will not be easy to achieve: witness the fact that no spacefaring nation has yet ratified the UN's 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which proposed to turn over jurisdiction of all celestial bodies to the international community under the UN Charter. But long history likewise teaches that there is simply no other way to avoid eternal warfare, rapine, environmental destruction, and existential threats to mankind itself.
There Is Still Time - But the Clock is Ticking
While the CEOs of Planetary Resources and Deep Space Industries would no doubt argue that the time for a unilateral U.S. declaration of private property rights in space is now (i.e., before their companies' obviously premature efforts face capital starvation and resulting bankruptcy), the rest of humanity might be forgiven for feeling that these gentlemen's problems are not the world's problem, and that time remains to do this thing right (for the first time in history).
Still, the window of opportunity within which to craft a coherent legal basis for a sustainable relationship between mankind and the cosmos - before a wild-west free-for-all becomes a fait accompli - is indeed beginning to close (on a historical timescale, at least). In 2010, Japan's Hayabusa spacecraft returned to Earth a few hundred dust grains from near-earth asteroid 25143 Itokawa. In August 2014 the European Space Agency's Rosetta spacecraft, concluding a ten-year long chase, intercepted and entered orbit around comet 67P/Churyumov–Gerasimenko, and this November will attempt a soft landing on the comet's surface by its Philae lander. And looking just a little further ahead, as the list of potentially habitable extra-solar earth-like planets continues to grow (with the current closest candidate, tau Ceti e, a mere 12 light years away), we may no longer be inconceivably far from our first encounter with some kind of life on another planet. Will we mindlessly destroy it in our quest for the almighty dollar? Enslave it in the service of our captains of industry? Wage endless wars over it? Why not take the time to get this right, and to start now?
Between them, the Hayabusa and Rosetta missions are foundational achievements in the development of basic technologies required to reach out and touch near-earth non-planetary bodies, undoubtedly heralding much more intensive efforts to come as an ever more hungry Earth searches ever more heroically for resources to feed our civilization. But notable as these missions' accomplishments have been, still vastly more effort will be required on the research, development, and business fronts before economically feasible cosmic resource extraction can become a reality. With this quest just now beginning, and with, doubtless, decades to go before becoming a practical reality, now is the time to decide the future nature of man's legal relationship with the cosmos.
The ASTEROIDS Act is not the right start. Let's try again.