Journal The New Atlantis in Washington D.C. in the Fall issue of 2012 published an article contributed by Rand Simberg about the important subject of how property rights could be introduced in space. Excerpts will be published on this blog in 2 parts. For Part 1 see below:

The Ever since space travel began in the 1950s, space enthusiasts have dreamed that the exploration of space would lead to the colonization of space by human beings. From Arthur C. Clarke’s visions of colonies on the Moon to the plans of the Mars Society today, the goal of human settlements on celestial bodies has inspired scientists and science fiction writers, and to a lesser extent politicians and entrepreneurs. But progress toward a permanent human presence in space has stalled. Scientific research conducted by people in orbiting labs like the International Space Station has contributed modestly to our knowledge of living in space. Unmanned satellites for telecommunications, defense, weather monitoring, scientific research, and other applications have proliferated over the last half-century. However, practical, economic development of space — treating it not as a mere borderland of Earth, but a new frontier in its own right — has not materialized. Still, the promise is as great as it ever was, and, contrary to popular opinion, is eminently achievable — but only if the current legal framework and attitude toward space can be shifted toward seeing it as a realm not just of human exploration, but also of human enterprise.

Space contains valuable resources. These provide a compelling reason for entrepreneurs, investors, and governments to pursue space exploration and settlement. Asteroids are known to be rich in valuable elements like neodymium, scandium, yttrium, iridium, platinum, and palladium, most of which are rare on Earth. Because of the high price that these minerals command, harvesting them from space could possibly justify even very costly mining expeditions. This is the hope of Planetary Resources, a company recently formed and funded by Google executives Larry Page and Eric Schmidt with the intent of mining asteroids. Similarly, Microsoft billionaire Naveen Jain has founded the company Moon Express, with plans to use robots to start mining the Moon — as early as next year, it claims. Meanwhile, Texas-based Shackleton Energy Company plans to mine ice in Shackleton Crater at the lunar south pole to provide propellant for planetary missions, and is raising funds for the venture now.

International space law, such as it is, began to take shape during the space race, when outer space was viewed not as a potential frontier for development and settlement by private actors but rather as a competitive battlefield between the two superpowers in the Cold War, as well as a new realm for scientific discovery, led by government space agencies. The United States and the Soviet Union each sought to curtail the other’s political and military use of space; they found common ground, or at least claimed to, in the project of exploring space for the advancement of science.

Negotiations in the late 1950s and early 1960s between the United States and the Soviet Union on governing space activities culminated in the signing in 1967 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (better known as the Outer Space Treaty, or OST), an international agreement that remains the most important piece of international space law today.

Some parties to the treaty, particularly the Soviet Union, wanted space activities to be the sole preserve of governments. But negotiators from the United States managed to achieve a compromise in Article VI of the treaty that, as Kopal writes, “paved the way for the private sector to conduct space activities side by side with States and international intergovernmental organizations.” Under Article VI, signatory governments bear international responsibility for national activities in outer space … whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

By permitting non-governmental activities in space, albeit under government supervision, this section of the treaty allowed for the creation of the commercial telecommunications, remote-sensing, and spacecraft launching industries, which were then in their infancy and today are thriving. However, as Kopal notes, the treaty “does not contain any principles that would regulate economic activities for the purpose of exploring and exploiting the natural resources of outer space, the Moon and other celestial bodies.”

A dozen years after the signing of the Outer Space Treaty, a handful of countries proposed a new treaty aimed at governing economic activities in space: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. (Its informal name, the Moon Treaty, is somewhat misleading, since the treaty applies to all celestial bodies in the solar system, not just the Moon.) The principle behind this treaty is that resources falling outside the territories of nation-states — in this case, off-Earth resources — are “the common heritage of mankind.” This principle is modeled on the 1982 Law of the Sea Treaty, one of the aims of which is to regulate seabed mining. But as a 2009 Economist article argued, the Law of the Sea Treaty would deny most of the rewards of prospecting to those who actually undertake it, making it a barrier to seabed mining happening at all: “Commercial miners want both a clear title to their holding and exclusive rights to exploit it. They also have to answer to shareholders.” This is one of the principal reasons that the U.S. Senate has never approved the Law of the Sea Treaty despite repeated efforts to muster the necessary two-thirds vote, most recently in summer 2012.

Fortunately, the Moon Treaty is essentially a failed piece of international law. Only fourteen states are signatories to the agreement, and none of these is a spacefaring nation. Nonetheless, the provisions of the Moon Treaty remain a potential disincentive to the economic development of space, and underscore the case for the United States to repudiate it by providing an alternative, more market-friendly legal approach to space settlement.

Unlike the Moon Treaty, all spacefaring nations are signatories of the Outer Space Treaty. But there remains a question of how property rights stand under the OST — whether they are permitted, outlawed, or neither. This issue has not been put to the test in any significant legal proceedings, but some analysts have argued that recognizing property claims would be explicitly prohibited under Article II of the treaty, which reads in part, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

A later section of the OST can be interpreted to suggest that private property might count as national appropriation. As noted earlier, under Article VI, signatory states bear “responsibility for national activities in outer space” no matter whether those activities are conducted by government personnel or private citizens. But it is still not clear that the “national activities” referred to here would include private activities and property claims not made on behalf of a national government. As early as 1969, the distinguished space-law scholar Stephen Gorove argued in the Fordham Law Review that the Treaty in its present form appears to contain no prohibition regarding individual appropriation or acquisition by a private association or an international organization, even if other than the United Nations. Thus, at present, an individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space, including the moon and other celestial bodies.

Despite these ambiguities, an alternative property-rights regime would be most successful if it aimed to conform with the OST. After all, the OST is the basis of most current international space law, including subsequent treaties, such as the Rescue Agreement (1968), relating to astronaut rescue and return, and the Liability Convention (1972), which establishes how to adjudicate claims for incidents that result in harm to third parties. Hence the first step in any space settlement strategy is to find a means of establishing property rights in space that adheres to at least the letter of the Outer Space Treaty, and perhaps can be considered an attempt to clarify and expand upon it — rather than to engage in the much more difficult process of amending the treaty or negotiating a replacement.


  1. Of space solar power | Says:


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