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The Moon Treaty states that no extraterrestrial property can be owned by any organization or person, with the exception of international and governmental organization.

So, taking the current state of space law, what are the legal prerequisites for starting the exploitation of natural resources on some asteroid by private company? The private company can't legally possess the asteroid, but it could be claimed by the government, which could grant the license for extracting resources from it to private company. Is it possible according to actual space law and its interpretation?

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According to current space law, the 1967 Outer Space Treaty: (in Article 6)

“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. ”

Which means that any company that wants to operate in space must be approved by its country and supervised by its country, i.e. Planetary Resources must be supervised by the US government (article here).

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  • $\begingroup$ This is patently false. No person or company (group of persons) require the permission of any state to operate in space. $\endgroup$
    – Erik
    Jul 18, 2013 at 23:03
  • $\begingroup$ @Erik: There is some meaningfulness in the Other Space Treaty, even today. Besides, do you remember the story of PanAmSat? There was some bullshit-bingo with the US government before they could properly start their business ... $\endgroup$
    – s-m-e
    Jul 18, 2013 at 23:51
  • $\begingroup$ I don't know the PanAmSat story, but I suspect they wanted the contract law protections that the US government provides and therefore were beholden to the US government's rules/treaties. That's a lot different case. $\endgroup$
    – Erik
    Jul 19, 2013 at 1:53
  • $\begingroup$ @Erik: en.wikipedia.org/wiki/PanAmSat (2nd paragraph) Times have changed, but no matter how you call it, launch activities at the very least still do not work without some "supervision" (bureaucracy) in most countries. $\endgroup$
    – s-m-e
    Jul 19, 2013 at 18:13
  • $\begingroup$ The word "launch" does not appear in the question though. ;) $\endgroup$
    – Erik
    Jul 19, 2013 at 18:20
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I think the current philosophy is somewhat different. It was said that asteroids are so small that they barely match the definition of territory. They are more like an object. Furthermore, if you equip them with any propulsion system and change their trajectory or orbit, respectively, they literally become space-crafts. Based in this train of thought, the argument is, who claims it first, takes it as private property. For reference: "Mining the Sky, Untold Riches from the Asteroids, Comets, and Planets", John S. Lewis.

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What a company must legally do today if they intend to mine an asteroid is:

a) Be based in either the US or Luxembourg, the only two countries with asteroid mining laws.

b) Obtain the proper licenses for launching and operating space vehicles.

c) Pray there is no international outcry regarding their mining activities.

A country cannot own an asteroid, according to Article II of the Outer Space Treaty: 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.

The debate right now is whether a government can grant ownership of mined materials to one of its companies given that the government cannot own the asteroid where these materials were mined from. Those is favour of asteroid (and generally Space) mining argue that Space should be like the high seas: Nobody owns them, but there are international agreements that allow companies to fish there, and own whatever fish they pull out, thus giving them the right to profit from the high seas without an implied ownership.

It's entirely possible that this issue won't be resolved until a company actually goes out and mines an asteroid, and then the international community will have to decide whether they're OK with that company owning the material they harvested. The company's lawyers, and probably the company's government, will point to the 1958 Convention on the High Seas (since superseded and updated) and say "it's the same thing as fishing in the high seas!".

You might want to read another answer I give to a similar question:

https://space.stackexchange.com/a/26065/23624

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Private property rights are a natural right.

Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable.

If you can get to the asteroid and make a claim or remove material, it is yours. No treaty or law changes this. Whether or not a court in Bangladesh or Arizona disagrees with you is immaterial. This is especially true if those states have no way of getting to your asteroid.

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    $\begingroup$ Since when did private property rights extend to anything you can get your hands on? I'm all for the right to own and control your own property, but what gives you the right to claim some random object you didn't purchase or construct as your own? I'd agree that it might be the practical case that no one can stop you, but that doesn't answer the question which specifically asked about the law regarding such an operation. $\endgroup$
    – reirab
    Mar 26, 2014 at 18:45
  • $\begingroup$ I don't have to ask permission from every person in the universe to harvest oxygen from an asteroid to use in my life support system or to sell to others to do the same. I just do it and it is mine -- a natural right. The asteroid is not part of anyone's sovereign territory, nor am I a subject of any sovereign that precludes my access to it. $\endgroup$
    – Erik
    Mar 26, 2014 at 19:23
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    $\begingroup$ You don't have to ask permission, but if you are a US citizen and you violate US law while in outer space, you're still potentially subject to prosecution when you return. If you never return, then it may be a moot point, but if you return to the Arizona court's jurisdiction, expect their disagreement to matter. $\endgroup$
    – Bobson
    May 6, 2014 at 18:39
  • $\begingroup$ Anything done on said fictional asteroid regarding material would be outside of Arizona's (or anyone else's) jurisdiction. Even if it wasn't, the US Constitution affirms private property rights. $\endgroup$
    – Erik
    May 6, 2014 at 21:49

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