"We're taking the right to regulate interstate commerce and have taken it to mean the right to regulate interplanetary commerce."
Congress has moved forward with a bill that would make it legal for US companies to mine asteroids for minerals, despite the fact that it appears to be in violation of an international treaty that the United States itself wrote.
The bill, called the Space Resource Exploration and Utilization Act of 2015, states that "any asteroid resources obtained in outer space are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto."
The bill is designed to protect the interests of American companies, such as Planetary Resources, that want to mine asteroids. As subjects of the US, Congress is attempting to give them legal cover against competitors, be they foreign countries or foreign companies. Seems reasonable, and seems straightforward, except it's not.
The US wrote, signed, and got 124 other countries to sign the Outer Space Treaty in 1967, which states that the Moon and "other celestial bodies" are "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means."
What that means with regard to Congress handing over asteroids to private companies is an open question, one that University of Mississippi space law expert Joanne Gabrynowicz testified last year is sufficiently complex as to require further legal examination so as to not start an international incident.
For instance, the Outer Space Treaty suggests that anything exploited from space is the property of all the nations of the world. If one company mines a bunch of platinum, it's obviously going to want to keep it for itself. What to do?
Wednesday, the House Committee on Science approved the Space Resource Exploration and Utilization Act and recommended that the full House of Representatives pass it, treaty be damned.
After a series of heated debates, committee chairman Rep. Lamar Smith (R-TX) stated bluntly that there is "nothing in this act that violates the law. The Outer Space Treaty is a series of guiding principles subject to legal interpretation," not a binding law.
"We're taking the right to regulate interstate commerce and have taken it to mean the right to regulate interplanetary commerce"
Rep. Ed Perlmutter (D-Colorado) snapped back: "We wrote the treaty, and the language is pretty clear," he said. "We need to present this idea to our treaty partners about how to mine all of this stuff without getting in a fight … I don't think we want to step away from the agreement."
The bill also says the US can prosecute anyone who happens to mine an asteroid that another company is on, whether that interloper is another American company or a foreign one. Rep. Alan Grayson (D-FL) questioned the idea that the US would have the ability to prosecute a foreign company for not following a US law in outer space.
"The bill is clearly unconstitutional, it's not even a close question," he said. "I fear we're taking the right to regulate interstate commerce [from the Constitution] and have taken it to mean the right to regulate interplanetary and maybe one day intergalactic commerce."
Whether the bill, if passed, would actually cause any sort of problems worldwide is an unanswered question, and Republicans in the committee, such as bill sponsor Rep. Bill Posey (R-FL), said they'd rather "err on the side of America's interest" rather than consider the limits of the treaty.
The Outer Space Treaty has been kind of an annoyance for the United States ever since it's been ratified. For every good thing it does (prevent countries from putting nuclear weapons in orbit), there's something like this asteroid exploitation problem—things that seemed fanciful in the 1960s or perhaps never even crossed the minds of the treaty writers have become plausible, and it's causing headaches for everyone. Space colonization, for instance, could be illegal under the treaty.
The US could leave the treaty by giving a one year notice, but Rep. Donna Edwards (D-MD) questioned whether it'd be wise to let one company (Planetary Resources, which wants to mine asteroids) to "come to the committee, and lobby for legislation that puts the US at risk of violating a treaty."
A more rational approach, several on the committee suggested, would be attempting to change the treaty so that it allows things like asteroid mining. Whether that happens is anyone's guess. The treaty may be annoying, but it's still an agreement. The question now is whether the full House plans on actually voting on the bill.