Congress moves to claim space resource rights for Americans despite an international treaty

Asteroid platinum and the briny water on Mars may soon be available for plunder, Republicans and Democrats have agreed, advancing a bill that would grant “space resource rights” and could challenge an international treaty on outer space.

The US Senate passed the Space Act of 2015 this week, sending its revisions of the bill back to the House for an expected approval, after which it would land on the president’s desk. The bill has a slew of provisions to encourage commercial companies that want to explore space and exploit its resources, granting “asteroid resource” and “space resource” rights to US citizens who managed to acquire the resource themselves.

The lawmakers defined “space resource” as “an abiotic resource in situ in outer space” that would include water and minerals but not life.

Space law is a new frontier for the lawmakers and lawyers planted on Earth, and although the commercial spaceflight sector has grown enormously in the past decade – including Elon Musk’s SpaceX and Richard Branson’s Virgin Galactic – the prospects of space mining have remained unclear.

Related: Nasa plans mission to land on asteroid and explore deep space

Planetary Sciences, a private company backed by Google’s founders and film-maker James Cameron, welcomed the Senate vote with an exuberant statement celebrating “the right of US citizens to own asteroid resources”.

The company’s president, Chris Lewicki, compared the bill to the Homestead Act, which distributed public land to Americans heading west and helped reshape the United States.

“The Homestead Act of 1862 advocated for the search for gold and timber, and today, HR 2262 fuels a new economy,” Lewicki said in a statement. “This off-planet economy will forever change our lives for the better here on Earth.”

Aside from the daunting logistics , the largest earthbound obstacle to space mining is an 1967 international treaty known as the Outer Space Treaty, to which the US is a signatory. The treaty holds that no “celestial body” is subject to “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

Senate lawmakers were careful to add in their bill that they grant rights only to citizens who act under the law, “including the international obligations of the United States”.

They also added a “disclaimer of extraterritorial sovereignty”, saying the US does not thereby assert ownership, exclusive rights or jurisdiction “of any celestial body”.

So although the bill asserts certain rights for US citizens, it disavows any national claim – sending a mixed message on asteroid rights, space lawyer Michael Listner told the Guardian.

“So on the one hand Congress is saying to these companies, ‘Go get these rights and we’ll defend you,’ and at the same time saying, ‘We’re making no sovereign claim of ownership,’” he said.

“They’re trying to dance around the issue. I tend to think it doesn’t create any rights because it conflicts with international law. The bottom line is before you can give somebody the right to harvest a resource you have to have ownership.”

Listner admitted that many in his profession disagreed about whether the act would create new rights, saying that “space lawyers are kind of split right down the middle on this”. But he added that there’s “a lot of great things” in the bill, which he said should encourage investment in commercial space projects.

The bill would also extend the current timeline for use of the International Space Station to at least 2024, for instance, and would also put a moratorium on regulations for commercial spaceflight companies. Perhaps most importantly, Listner said, the bill would keep commercial spaceflight lawsuits in federal court rather than state courts, where plaintiffs have an easier time finding sympathetic juries.

The companies have a strong interest to avoid the fate of the general aviation industry, he said, which has “gotten killed over the years” with lawsuits.

Asteroids vary in their makeup, but some are rich in platinum and other valuable metals. Nasa has run missions to explore the possibilities of mining asteroids , and planned a mission to land on one and wrest a boulder free. Last year a European module made the first landing on an asteroid in human history.

In Washington and on the campaign trail, lawmakers put aside their usual vitriol for each other and praised the vote. Republican Kevin McCarthy, the House majority leader, said the bill would “give our commercial space pioneers the certainty they need to expand our technology capabilities and explore the next frontier”.

Senator Ted Cruz, the chairman of the subcommittee for space and science and a presidential candidate for the Republican party, said the bill gives NASA “nearly a decade of mission certainty”.

“Most importantly, it solidifies America’s leading role in the commercial space sector and builds upon the work of President Reagan,” he added.

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