Congress Doesn't Have the Power to Make Asteroid Mining Legal

by Jason Koebler

When most of us look at the night sky, we see stars. But a few entrepreneurs see dollar signs. Lots and lots of them, embedded in asteroids that hold a near-limitless sum of platinum, nickel, iron, even water that could be mined and brought back to Earth—or used to power the interstellar economy. Then there are space lawyers, who look at the entrepreneurs looking at the sky, and see a regulatory mess brewing.

As we explored in depth last year, there are no real easy legal answers when it comes to mining an asteroid. For every clause in the Outer Space Treaty governing outer space's resources, there's a loophole or a gap that would-be asteroid mining companies like Planetary Resources and Moon Express would love to slip through.

Strictly speaking, under the Outer Space Treaty, it's probably not illegal to actually mine an asteroid—but, as an international resource, it's very unclear who, exactly, the mined minerals would belong to. It's problematic when you plan on spending billions to develop the technology and know-how to actually do it, mine an asteroid, bring back untold riches of platinum, and then have to split it with every country on the planet.

Regardless of how you feel about asteroid mining in general, it's a problem that Congress is currently trying to navigate in a way that only the United States seems to be able to: By potentially telling everyone else in the world it's going to do what it wants because, finders keepers.

Earlier this week, the House Science Committee examined the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS, get it?) Act, a bill that would "promote the right of the 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."

The bill also claims that "any resources obtained in outer space from an asteroid are the property of the entity that obtained such resources."

The problem is, that idea doesn't really mesh at all with the Outer Space Treaty of 1967, a document that, if we're being totally honest, has been a thorn in the side to Silicon Valley-types looking to set up space colonies or, whadya know, mine an asteroid.

In testimony given earlier this week at the House hearing, Joanne Gabrynowicz, director of space law at the University of Mississippi School of Law, suggested that "as with the ownership status of extracted resources, there is no legal clarity regarding the superior status of a claim found to be 'first in time.'"

In other words, it's-yours-if-you-found-it might work in space, or it might not.

"Unlike some other global commons, no agreement has been reached at to whether title to extracted space resources passes to the extracting entity," she said. "There is no legal clarity regarding the ownership status of the extracted resources. It is foreseeable that the entity's actions will be challenged at law and in politics."

So, if Peter Diamandis wants to go and drill a barrel full of diamonds out of an asteroid, he's certainly welcome to do so ("appropriating" territory in space, including an asteroid, is expressly prohibited, while the "exploitation of natural resources" seems to be fair game), but when he gets back to Earth, he might have to give them to Spain or Germany or Japan or, hell, maybe all of them.

The thing here is, we don't know. "International space law contains many gaps and ambiguities," Gabrynowicz said.

There's a way to navigate this, but Congress unilaterally passing a law that doesn't include other countries in it likely isn't the way forward. As Adam Minter of Bloomberg wrote, "such ambitions should have US policymakers thinking seriously about using this opportunity to draw China and Russia [and others] into the orbit of international agreement, if not law."

Perhaps the US should start by approaching the United Nations Office for Outer Space Affairs and take it from there. Giving American companies the go-ahead to do this, without international agreement, isn't going to end quietly.