The Space Reviewin association with SpaceNews

Asteroid mining illustration
Although property rights reform has been seen as necessary to encourage space development, there’s no reason to wait for space property rights to invest in space. (Credit: NASA)

Don’t wait for property rights

Why do parents teach pre-schoolers to share, then do an about face and try to encourage their college-age kids to get the nicest house, take the highest paying job, file patents, trademarks, and copyrights, and sign a pre-nuptial agreement? To quote Queer Eye for the Straight Guy, “Grow Up!” Let’s abandon the socialist, utopian space commons pap and develop a system that actually works. Space property rights are a great idea whose time has come. However, space near Earth can be developed without additional property rights and initial exploration and commercialization of Mars and the Moon can begin without further property rights.

The Outer Space Treaty of 1967, which has been ratified by 98 nations and signed by an additional 27, forbade property rights in space. No nations can make property rights claims. Further, the conventional interpretation of the treaty is that no one at all can make property rights claims. The International Institute of Space Law summarized the state of property rights succinctly in a recent statement on their web site, “The prohibition of national appropriation… includes appropriation by non-governmental entities (i.e. private entities whether individuals or corporations) since that would be a national activity.” That is, no one can claim anything, not governments, corporations or individuals.

Suborbital and orbital transportation, however, do not require any property rights.

Space property rights are a great recommendation from the Aldridge Commission: “The Commission recommends that Congress increase the potential for commercial opportunities related to the national space exploration vision by providing incentives for entrepreneurial investment in space, by creating significant monetary prizes for the accomplishment of space missions and/or technology developments, and by assuring appropriate property rights for those who seek to develop space resources and infrastructure.” Space property rights are an important building block for colonization. The Moon and Mars will not see maximal colonization without property rights. Mineral rights, spectrum rights, rights of way, orbital slots, intellectual property, and title deeds are critical legal underpinnings to optimal development. I make the case for property rights in “Property rights and space commercialization” and focus on patent rights and spectrum rights in “The Dinkin Commission report (part 2)”, but they are not necessary in the near term to commence space development.

Suborbital and orbital transportation, however, do not require any property rights. Article 8 of the Outer Space Treaty starts:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.

That is, property rights for objects including space planes, rockets, satellites and anything else launched into outer space are protected. That covers a tremendous amount of potential commerce. Suborbital and orbital tourism, orbital manufacturing, orbital energy production, point-to-point suborbital transportation, colonization of the Lagrange points, space interment, and even sending ships and structures to the Moon and Mars are covered.

The Outer Space Treaty does not forbid in situ resource utilization. Space is treated like a commons. Astronauts have brought home space rocks and taken title to them. If you want resources on Mars or the Moon, take them. No other country has the power to exclude you if your home country approves your activity. The most others can do is ask for “consultations” with your country’s government. That means that Moon rocks, Mars rocks, Moon photos, imported lunar structures, imported Martian structures, and in situ resource utilization are all fair game.

It might be that the more important worry is that there are no enforcement teeth in the Outer Space Treaty.

Of course, anyone else can take resources too. The risk of other users arriving and using resources developed by the pioneer means that the pioneer may be forced to share. Like in many terrestrial industries, there is risk of entry by others. That is a manageable risk that entrepreneurs routinely face when contemplating entering a new industry. In many industries, there are property rights that can be obtained that can exclude others, but in many there are not. If I have a cell phone company in my hometown, many other companies can compete with me. While there is a limited upside to entering my local cell phone market due to the possibility of entry, there are still quite a few vendors who have invested a good deal. This industrial policy is not optimal. Since we see no profitable development now on the Moon, it is reasonable to assume that for many lunar ventures, a monopoly is required for a length of time to make the venture profitable. There is no guarantee of a monopoly for an interested lunar entrepreneur like the kind that many property rights grant. That may preclude some business plans from working, but not all of them.

The Outer Space Treaty may be altogether moot. If an entity is first to the Moon or Mars, they have little to worry about from the perspective of pirates and free riders. No one will be there at first. If someone does take your space station, there are no cops you can call yet. It might be that the more important worry is that there are no enforcement teeth in the Outer Space Treaty. States are forbidden from the “establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies”. So if someone decides to violate the Treaty and start marauding around the Moon, who will stop them?

The Outer Space Treaty is not much help or hindrance to near-term development. The most likely outcome of any reasonable attempt to conduct commerce according to the treaty is that countries with any reasonable amount of space activity will withdraw from the treaty. Article 16 foresees this, “Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.” Maybe the Outer Space Treaty is ready for us to grow up after all.