Asteroid Mining Rights

Popular Mechanics has posted an article asking who has the right to mine asteroids. Those of us in libertarian circles have been passing this article around as a joke. The article points out the fact that states generally maintain monopolies on mining rights and, in addition to those monopolies, implement numerous regulations on the mining industry. What the article appears to be asking is what laws will the lawyers create regarding asteroid mining:

But remember that open question. If you go get an asteroid and bring it back, is it yours? On Earth, of course, no one would open a mine without being sure they owned the land or at least the mineral rights. The same is true in space. But while mining law on Earth is pretty much settled, asteroid-mining law isn’t so clear yet.

The 1967 Outer Space Treaty prevents nations from making territorial claims beyond Earth: “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,” it states. But what is “national appropriation”? And what is a “celestial body”?

Those are the kinds of issues that lawyers grapple with. Space law used to be mainly an academic pursuit, but no longer—in fact, the American Bar Association just published a guidebook in the field. Most experts—including me—believe that a ban on “national appropriation” doesn’t prohibit private property rights. The Outer Space Treaty was designed to prevent the winner of the 1960s space race from claiming the moon for itself. The United States and the Soviet Union were each worried about what would happen if the other nation beat it there. They were thinking of missile bases and territorial disputes, not mines or lunar tourist resorts. The “celestial bodies” language was added by way of expansiveness, but the Outer Space Treaty doesn’t define the term, except to make it clear that the moon is one.

Who cares what the lawyers think? The question that should be asked is, who can stop non-state entities from mining asteroids? We must remember that the state accomplishes all of its goals through the use of force. When people are outside of a state’s ability to inflict violence on them they are free to act outside of its law. That is the reason people in the United States don’t comply with Saudi Arabia’s laws, the Saudi Arabian state is unable to inflict violence on those of us living in the United States. Therefore we must ask what kind of violence the states of Earth can wield against those in orbit. As it turns out there likely isn’t a lot of violence Earth-based states can inflict on spacefaring individuals. One need only look at the condition of each state’s space program to see how ineffective they are in space. No state, as far as we know, possesses armed spacecraft capable of inflicting its will off of Terra.

What good are state decrees if they cannot be enforced with violence? They’re pointless, just as every unenforceable law. In fact I would say the key to mining asteroids isn’t just getting to the asteroids but is also preventing the states of Earth from inflict their violence off of the planet’s surface. Even if miners aren’t capable of preventing Earth’s states from getting armed craft off of the planet there is still the fact that space is so vast that no entity can patrol even a fraction of it. Once you’ve escaped Earth the only thing you need to do to keep yourself outside of the state’s grasp is to run a little further than it. This fact renders the question of state regulations of asteroid mining irrelevant.

Frontiers have traditionally been refuges from state power. People fled to the American colonies to escape the British Crown’s prejudice. Eventually the American colonies severed their ties entirely with Britain and established their own government. People wanting to flee the United State’s authority began moving into the western frontier. History gives us a numerous examples of individuals fleeing state persecution in frontiers and we are now seeing the beginning of people fleeing Earth to escape the tyranny of its states.