Popular Science reported on Wednesday on a bill called the Space Act of 2015 that has passed the House and may soon pass the Senate that will allow private companies to own the natural resources that they mine in space. The idea would seem to be a no-brainer. However, the bill is causing some heartburn among some space law experts, especially in other countries. Fabio Tronchetti, a lawyer at the Harbin Institute of Technology in China, argues that the law would violate the Outer Space Treaty. He seems to be on thin ice in that assessment, however.
Tronchetti contends that the bill violates the Outer Space Treaty, which forbids the establishment of national sovereignty on other worlds. The idea is that the bill would confer such sovereignty to private companies, something that the United States lacks the power to do. Keith Cowing of NASA Watch echoes that sentiment and the misunderstanding of the Outer Space Treaty and the Space Act of 2015.
The Outer Space Treaty is silent about private entities claiming ownership of celestial bodies. As a practical matter, a private company would lack the ability to enforce such a claim without a national government backing it up if some other entity chooses to dispute it.
However, the Space Act of 2015 does not confer ownership of asteroids or even parts of the moon to private companies. All it does is that in confirms that the resources extracted in space become the property of such companies, really a prerequisite for starting a space mining industry to start with.
A legal precedence exists. When the Apollo astronauts landed on the moon, they did not claim Earth’s nearest neighbor for the United States when they raised the stars and stripes on the lunar surface. They did, however, collect a considerable number of rocks and soil samples and returned them to Earth. Those rocks and soil samples remain the property of the United States government, something that is recognized by the international community. It is therefore not a leap to confer on private companies the right to all the platinum group metals, water, and other valuables that they extract from asteroids or the moon.
Tronchetti and others suggest that the Space Act of 2015 is being passed prematurely, that there is enough time for an international consensus on space property rights to evolve naturally. Supporters of space mining point out that companies are preparing to undertake such operations now. Confirming that those companies owns the resources they extract would be of great help in attracting investors, even if those operations lay years in the future.
The question arises, will President Obama sign the bill if it gets to his desk. He and his supporters claim that he is a great champion of commercial space, pointing to the commercial crew program. However, if he does yield to the concerns of foreign space lawyers, that image will become necessarily tarnished. More important, the dream of mining in space, with trillions of dollars of potential profits at stake, will have suffered a severe setback.