Illustration: Rebecca Zisser / Axios

We're standing at the starting line of a new space race, one that could trigger a gold rush-like hunt for resources. Companies are lining up to launch space mining missions, and countries are passing laws to allow them. There's just one problem: Under some interpretations of the 50-year-old Outer Space Treaty, which was signed by almost 100 countries, none of this is legal.

The bottom line: In the past, the answer to the question "who owns space?" was easy: everyone and no one. Soon, that might not be true.

Where it stands: Goldman Sachs thinks we should prospect asteroids for platinum. Companies like Planetary Resources and Deep Space Industries hope to launch space mining missions before 2030. Luxembourg passed a law legalizing such operations this past summer, as did the United States in 2015.

The Outer Space Treaty's primary goal is to keep weapons of mass destruction out of space. But it also declares there will be no military bases in space, that there will be free access for all countries to all parts of space, and — this is key — bans "national appropriation" of parts of space.

"The outer space treaty is one of those treaties that's so ambiguous, the debate isn't about what it says. It's what we want it to say," says Michael Listner, an attorney and founder of the think-tank Space Law and Policy Solutions.

The details: "The trillion dollar question" is what qualifies as national appropriation, says Listner. The United States believes individuals can extract materials from space without violating the spirit of the treaty. But other countries, like Russia, disagree.

Right now, says Listner, there is no consensus on the legality of prospecting space resources. Countries like the United States and Luxembourg are "posturing" by passing laws legalizing space mining.

The Outer Space Treaty essentially sets up space as a global commons. There are two ways to interpret that in Earth terms:

  • Space as the ocean: Frans von der Dunk, a professor of Space Law with the University of Nebraska-Lincoln, says the Outer Space Treaty sets up space to be regulated like international waters. No one owns it, no one can colonize it, but anyone can fish in it. His position is supported by the United States and Luxembourg.
  • Space as a park: But Listner disagrees. "The ocean replenishes itself. If you mine an asteroid, it's gone." His interpretation of the law views space as a sort of park, where it belongs to everyone in that everyone can visit it, but at the same time they can't cut down trees, because then none would be left for anyone else.

Yes, but: The debate currently focuses on whether or not corporations and individuals can extract resources — a question Listner says is still legally murky. But if NASA were to go mining, "that would be an entirely different story," says Listner. That would constitute national appropriations.

Ethical considerations: Asteroids can be vastly mineral-rich resources. Could space mining exacerbate existing gaps between mineral-rich, space-capable countries and those without? It's a concern that's been raised regularly at the U.N.'s Committee on the Peaceful Uses of Outer Space.

Two ethical models: the moon and Antarctica

  • Signed in 1979, the Moon Agreement aimed to address the issue of equality in space. Several countries proposed laws allowing resource extraction from the moon, but at a price: a portion of the revenue would have to go to countries incapable of space exploration on their own, and countries need to share the intellectual property necessary to go to space.Additionally, any corporation would need the approval of an international body before extracting space resources. However, the United States, Russia and China, all of whom dominate space exploration, have chosen not to sign the Moon Treaty.
  • There is one place on Earth somewhat analogous to the moon: our southernmost continent. Although several countries technically claim territory on the frozen landmass, the Antarctic Treaty prohibits them from using that land in a way that inhibits the access of others.Knowledge gained from Antarctic research must be freely shared, and in 1991 the signatories to the Antarctic Treaty agreed to cease mining operations on the continent unless they're first approved by an international body.

Although the circumstances surrounding space and Antarctica are different, it stands as an example of how the countries of Earth can act cooperatively in such a way. Indeed, when Eisenhower first proposed the Outer Space Treaty, the Antarctic Treaty was the inspiration. And people inhabit Antarctica year-round, in the same way they might one day inhabit the extraterrestrial bodies.

Over decades, voyages into space have become trans-national efforts. From the ISS to Cassini to China and Europe's joint moon mission, we hold space exploration as an example of what humanity can accomplish via cooperation. As privatized, commercial space exploration becomes more common, the question is whether we'll still see it that way.

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