Rep. Bill Posey (R-FL) and Rep. Derek Kilmer (D-WA) introduced the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act today that they say will establish and protect property rights for commercial exploration and exploitation of asteroids.

Two U.S. companies prominently promoting the potential of asteroid mining are Planetary Resources, headquartered in Redmond, WA, and Deep Space Industries in Houston, TX.

In a statement, Posey and Kilmer said that while it may be many years before asteroids actually are mined for their resources, the research is underway now and companies need greater certainty about property rights to what they are mining. Nickel, iron, cobalt and platinum-group minerals (platinum, osmium, iridium, ruthenium, rhodium and palladium) are specifically cited as potential minerals that might be mined on asteroids. They say that their bill will —

Clarify that resources mined from an asteroid are the property of the entity that obtained them

Ensure U.S. companies can conduct their operation without harmful interference

Direct the President to facilitate commercial development of asteroid resources

The major issue is whether such property rights in space are legal under international law. The 1967 Outer Space Treaty, to which the United States and 102 other countries are signatories, prohibits claims of national sovereignty in outer space, including on the Moon and other celestial bodies, which includes asteroids. The treaty also states that governments bear responsibility for the actions by both government and non-government entities — such as private companies — to ensure that they abide by the treaty’s provisions.

Scholars in space law have long argued over whether the treaty prohibits exploitation of resources entirely. In 2004, the Board of Directors of the International Institute of Space Law (IISL) issued a statement that “prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim'” and it is the “duty” of governments to “implement the terms of the treaty within their national legal systems.” The IISL statement was spurred by a company that purports to sell deeds to parcels on the Moon, but has broader applicability. The IISL issued a further statement in 2009 to clarify its position that “any purported attempt to claim ownership of any part of outer space … or authorization of such claims by national legislation, is forbidden…. Since there is no territorial jurisdiction in outer space or on celestial bodies, there can be no private ownership of parts thereof….” It calls for a “specific legal regime” to be “elaborated through the United Nations, on the basis of present international space law.”

The 1967 Outer Space Treaty is one of five space treaties negotiated through the United Nations. The United States is signatory to four of the five. A synopsis of all five treaties can be found under the “space law” tab on SpacePolicyOnline.com’s home page.

A spokesman for Posey’s office said that the bill repeatedly states that it should be implemented “consistent with international obligations” and does not confer ownership rights to asteroids. It only “allows those companies that mine the asteroid to keep what they bring back.” The bill affects only U.S. companies engaged in such activities.

Tanja Masson-Zwaan, Deputy Director of the International Institute of Air & Space Law at the University of Leiden in the Netherlands, agrees that existing treaties do not seem to prohibit ownership of extracted resources, but adds that exploitation of space resources must comply with general space law principles.

Michael Listner, founder and principal at Space Law and Policy Solutions in New Hampshire, says that the bill is “crafted with international law in mind,” but the underlying caveat that property rights will be granted in accordance with international obligations could be a “showstopper.” He also points out that the European Space Agency (ESA) is “planning on granting resource rights as well” and asks how claims under this legislation would be reconciled with competing foreign claims.

Marco Ferrazzani, ESA Legal Counsel, said in a July 17 email to SpacePolicyOnline.com that “the European Space Agency is working towards exploration opportunities carried out in international cooperation and in full respect of international space law, with provides for the principle of non-appropriation.”

UPDATE: This article was updated on July 17, 2014 to add the quote from ESA’s Marco Ferrazzani.