At some point in our lives many of us have seen Dutch artist M.C. Escher’s stairs that go around and around and keep going up when they should be going down. The picture to the right is also uncanny. Do you see blue birds or white birds? It’s possible to see both, but not always at the same time. Scan your eyes left to right to see the white birds. Scan the other way to see the blue.
A provision in a 2015 law provides just as much uncertainty about what we’re looking at. Are asteroid miners the only new private space operators who must wait on Congressional action to operate in space? Or, did Congress merely tell the Executive Branch to go promote mining?
The U.S. Commercial Space Launch Competitiveness Act of 2015 states, in the portion of interest, 51 U.S.C 51302:
The President, acting through appropriateFederal agencies, shall—***‘‘(3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.”
The second part of this provision asks the President to prepare a report on what might be necessary under international law for government oversight of space mining.
We know that a couple of years ago the State Department’s legal adviser thought the provision meant that miners could only mine in space if there was a federal agency to approve the activity. This is because the Outer Space Treaty requires that countries who signed the treaty have to authorize and continuously supervise the acts of their nationals in outer space. Ignoring U.S. law on non-self-executing treaties, many, including the State Department, believe that miners may not mine without federal approval. The State Department’s legal adviser said:
Rather than abrogating the United States’ international obligations, the Space Resource Utilization Act affirms that space resource utilization activities are subject to the United States’ international obligations. By its terms, the Act sanctions space resource utilization only “in manners consistent with the international obligations of the United States.” Similarly, the Act only recognizes rights in resources “obtained in accordance with applicable law, including the international obligations of the United States.” The Act also recognizes that non-governmental space resource utilization activities are “subject to authorization and continuing supervision by the Federal Government.”
In other words, the legal adviser in the previous administration believed that asteroid miners may mine only as long as they are authorized and supervised in accordance with U.S. international obligations.
A reading that requires a less artful selection of quotes results in a different interpretation. In a more straightforward reading we see that Congress told the President to promote something subject to certain terms and conditions. The terms and conditions are vague, but the direction is clear: the President is supposed to promote U.S. citizens’ rights in the commercial exploration for and recovery of space resources. He must promote this right “in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.” It is easy to see why the State Department’s legal adviser thought this meant that miners were subject to authorization and continuing supervision. It is easy to see the white birds.
However, focusing only on the terms and conditions obscures the fact that all Congress did in this sentence was charge the President with promoting a certain outcome. Congress itself stopped short of imposing that outcome: it did not require asteroid miners to obtain federal authorization before starting operations.
It would be a shame if politicians had to say plainly what they intend. But then they wouldn’t have three ways to duck and an avenue to foist the thing off on unelected regulators to actually manage later.
They’ll fix it after the Indians bring back a few million ounces of Platinum…