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Moon base illustration
Who will protect outposts like these on the lunar frontier, without any sort of clear property rights? (credit: NASA)

Space property rights and the 3:10 to Yuma

Ever since I started reading about the emerging (and, surprisingly, pre-existing) legal regime in outer space, first in Glenn Reynolds’ and Robert Merges’ Outer Space, then in David Livingston’s “The Business of Commercializing Space”, and The Cato Institute’s Space: The Free-Market Frontier, it seems to me that the whole business is founded on some pretty foolish ideas.

The big one—the almost humorous one—is the idea that, when various nations signed the Outer Space Treaty of 1967, it included phrases that say, in essence, that space is for use by The People but not for nations to claim as territories. Some people have got it into their heads that this means that we can have property rights without the territory being claimed by a nation, including the movement of any military into space, for use against earth or other extraterrestrial presence.

The concern over international war is the first concern of civilization; it is the last concern of the frontier.

I’m a very simple man, and here’s my simple understanding of property law: say I’m a solar-farmer on the moon, just selling my electrical output to them city-folk across the ridge at the spaceport. Pirates, who’ve mutinied against the captain of their spaceship, land on my farm, kill my sons, rape my daughters, and take over my collector to recharge their batteries, becoming their new illicit base to spread their range of plundering and villainy. Who shoots them? If it’s the government, then I have property rights; if it’s me, then I might as well fly my own flag and call my 40 acres “Cardopolis”, a petty king of a petty city-state; if it’s nobody, this scenario will surely come to pass. Every advance in transportation has led to equivalent advances in piracy and I don’t expect space travel to be much different. I pitched this idea past a friend recently, and her response was, “But there’s nothing in space to build a ship out of; in the Carribean, there were trees.” I did my best to remain polite when I pointed out that Black Beard probably never built a ship himself; he bought them, or took them, from mutineers.

Defenders of this idea frequently cite Antarctica as a good precedent for how we should extend property rights in space. The problem is that nobody wants to go to Antarctica; it’s really cold. In all honesty, it’s probably easier to live in space than in Antarctica, and there’s no money to be made in Antarctica that isn’t easier to make elsewhere. That’s just a bad precedent.

Some also cite the International Telecommunications Union (ITU). This is an international agency that “prohibits the ownership of frequencies or orbital locations,” according to James E. Dunstan in Space: The Free-Market Frontier. However, they do allocate orbital slots and frequencies to individuals or companies, who can then use them, not use them, or sell them to other people, who then use them or not use them or sell them. I don’t know about you, but that sounds like a deed registry to me. The only difference, it seems, is that a deed registry admits that the property that it’s deeding is in its own territory; the UN seems not to want to admit that they want to be the territorial governors of Outer Space. This, again, is a bad precedent, this time not because it’s irrelevant, but because it’s completely wrong.

The opponents of extending national territories into space focus on the risk that competition over territory may lead to war between the nations. This is not invalid, but the concern over international war is the first concern of civilization; it is the last concern of the frontier. This is where the recent movie 3:10 to Yuma becomes a great illustration. From local cattle barons, to the railroad, to weak and ineffectual lawmen, to the poverty of the people themselves, every villain of the western genre made an appearance. In fact, natives made barely any appearance. There were two good people in the whole film and they don’t both survive. And I figure the odds on that are probably pretty reflective of humanity, on Earth and off. The first concern, regarding violence, of the frontier is not international conflict, but extra-legal conflict. That is, murder from bandits and pillaging from pirates. It’s not even clear to me that police forces will be seen as non-military, so even flagging an orbiting colony as a United States vessel, which is currently expected to indicate that it is subject to United States law in the same way that a flagged vessel in international waters is under United States law, will be relevant or even desirable. If the goal of space colonization is permanent residence, the current laws that apply to oil derricks may not be very good precedent and standing law enforcement will be necessary. If the law can’t be enforced, what’s the point of subjecting yourself to it? In fact, the nation may well discourage it, since the nation is responsible for damage and havoc done by any vessel under its flag.

Laws, institutions, and societies advance like any other technology, but what’s important to remember is that human beings don’t. To force humanity to go to into a new frontier without the benefit of these advances is like requiring we go without any of our technology.

Part of the problem is the insistence of space law theorists to treat property on a celestial body the same as territory in orbit or deep space. A better analog, to me, is to treat orbit, up to some multiple of geosynchronous orbit, around a body as “belonging” to that body (or some joint organization representing that body, like the ITU) analogous to territorial waters in maritime law, deep space as international waters, and territories on celestial bodies as terra nullius, land that’s as yet unclaimed (see “Still crazy after four decades: The case for withdrawing from the 1967 Outer Space Treaty”, The Space Review, September 24, 2007). I’m not proposing that we should ignore the real threat of war between nations over territories in space. But there are other solutions. There are a lot of solutions on how to allocate terra nullius; these solutions are discussed in Outer Space, starting on page 165. I don’t see why some such alternatives couldn’t be extended to the claims of national territory. For example: a limited degree of claiming land by an individual, similar to the current regime, with jurisdiction over the property subject to the country represented by the flag on the vessel or settlement. After some period of time, that property becomes the territory of the country of origin, provided continuous (or overall) profitability of the enterprise, conditional on no, or limited, direct subsidization by the government. An additional caveat could be presented where unclaimed territory, surrounded on four sides by territory governed by one government, becomes territory of that government. The purpose of this is to promote the growth of law and order in extraterrestrial territory, but also to slow down a land rush into space that could result in blocking still-developing countries from an opportunity to grow in that direction.

Laws, institutions, and societies advance like any other technology, but what’s important to remember is that human beings don’t. Humanity is not getting better; our civilizations are getting better. I walk to McDonalds after dark safely in Greenwood Village, Colorado, not because the people of Colorado are better than the people of Mogadishu, but because our governments, laws, and institutions are better. To force humanity to go to into a new frontier without the benefit of these advances is like requiring we go without any of our technology, like Man vs. Wild in the cold indifference of vacuum. I can’t imagine that working; why would we ask for the other?