I contributed a discussion on property rights to Commercial lunar propellant architecture: A collaborative study of lunar propellant production. Here is the excerpt where I point out that private property rights may be consistent with the Outer Space Treaty (with footnotes omitted). For the footnotes, check out the link.
Excerpted from Commercial Lunar Propellant Architecture, 2018 (footnotes omitted)
Section Author: Laura Montgomery
One issue where certainty would help with investment is the question of private property rights in outer space. The treaties do not need to be read to preclude private ownership. Clear and recognized freely transferrable property rights lie at the heart of Western prosperity.205 “Absent legally recognized rights to buy, own, and sell titled property, it is difficult, if not impossible, to get a loan to purchase said property, improve it, mine it, drill for minerals on it, or sell the proceeds from any of those activities. Property rights are a sine qua non of wealth creation ….”206
For US companies, Congress resolved one-half of the uncertainty by recognizing private claims to extracted resources when it passed the Space Resource Exploration and Utilization Act of 2015 [148]. The question of what property interests a private entity may exercise or what right it may have against someone with a competing claim to terrain it is working carries less certainty. Many scholars and government officials interpret the outer space treaties as barriers to private property under different theories. A careful reading of the treaties, however, shows that contrary theories may better reflect what the treaties actually say. Additionally, what the treaties have to say about the permissibility of private property rights remains a question of first impression, meaning that all the scholarly articles, the different position statements from federal agencies, and the wishes of space pioneers, have not been put through the crucible of litigation, and no judge has rendered a decision as to the accuracy of those interpretations. Accordingly, because a question of first impression is one where no binding legal authority controls the answer, 207 it might help to take a fresh look at the permissibility of private property rights.
There are several theories under which private entities may not claim property in space: a theory of the commons, the Outer Space Treaty’s bar to national appropriation, and a desire to forbid to private entities whatever is explicitly forbidden to states through theories of conformity or responsibility. There are an equal number of responses.
Space as a Commons
Many argue that space is a commons because it is “the province of all mankind” under the Outer Space Treaty or the “heritage of mankind” under the Moon Treaty. As the work of Professor Henry Hertzeld of George Washington University and Christopher Johnson and Brian Weeden of the Secure World Foundation shows, this is not correct. What really constitutes the “province of all mankind” is not outer space but the activity of exploring and using it.
Article I of the Outer Space Treaty says:
The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. [71]
These scholars explain that it is exploration and use of outer space that is the province of all mankind, not outer space itself. Additionally, since the United States has not signed the Moon Treaty, and most spacefaring nations have not, there is no need to explore the meaning of common heritage.
Bar on National Appropriation
Some suggest that the Outer Space Treaty’s Article II, which prohibits national appropriation of outer space, including208 the Moon and other celestial bodies,209 means that no one may appropriate space. The quick answer to this is that the treaty prohibits national appropriation, not all appropriation or private appropriation.
Imputation of Treaty Prohibitions on State Actors to Private Actors
Some claim that Article VI’s provision that States Parties to the treaty assure “that national activities are carried out in conformity with the provisions set forth in the present Treaty” means that commercial actors must abide today, even absent legislation, by each provision in the treaty, even the provisions that only apply to governments. This approach ignores the plain language of the treaty.
Conforming to the treaty should not mean that what is forbidden to States Parties must be forbidden to private entities as well. The treaty does not say that. It only says that private entities must conform. When Article VI calls for private conformity to the provisions of the treaty, it leaves unsaid which provisions apply. A review of the treaty shows that most of it applies to “States Parties.” When the treaty’s drafters meant a provision to apply to non-governmental entities they said so, such as in the non-interference provision of Article IX. Accordingly, when we determine to which provisions a private entity must conform, we see that very few apply to private actors.
Article II’s bar on national appropriation may mean a number of different things, some of which are less burdensome for the private sector than a ban on recognizing private property rights. Indeed, to the extent that Article VI calls for conformity by private actors, a less burdensome interpretation would be that private actors may not serve as a conduit for national appropriation. Accordingly, state owned enterprises would not be able to appropriate parts of outer space, but private entities could.
In this same vein, others argue that Article VI’s statement that “States Parties to the Treaty shall bear international responsibility for national activities in outer space… whether such activities are carried on by governmental agencies or by non-governmental entities…” means that what is forbidden to states must be forbidden to their citizens. Again, this theory ignores the plain language of the other provisions, which for the most part say they only apply to States Parties. When the treaty drafters meant to address non- governmental entities or a country’s nationals, they did so specifically. Moreover, the fact that an entity may be responsible for someone else does not automatically mean that what is forbidden to the first entity is forbidden to the second one. Person A may be responsible for Person B’s debts, but when Person A loses his driver’s license, Person B may continue to drive.
Although the US State Department once claimed, “private ownership of an asteroid is precluded by Article II,”210 the US Congress has since exercised its legislative authority to override and disagree at least in part by passing the Space Resource Exploration and Utilization Act. That new law recognized the rights of private entities in resources they may extract from outer space.211 It is possible that where the State Department was wrong before, others will be wrong about any prohibition on private claims.
Adverse Possession: A Way Forward
Finally, in order to steer a clear path forward, it might be useful to explore how a private entity could figure out whose property interests prevail in a dispute. Professor of Law, Thomas E. Simmons, in his study Deploying the Common Law to Quasi-Marxist Property on Mars [149], suggests that the common law principle of adverse possession would be a useful tool in resolving disputes. He recommends that any solutions to the problem “hew as closely as possible to the non-appropriation and common use [treaty] text, thus minimizing the possibility of outright judicial rejection of a request to recognize and enforce private property rights….” He considers two common law principles consistent with such a reading, namely, the principles of adverse possession and tenancy-in-common.
He also explores the availability of US courts. This requires viewing the courts as mere adjudicators of disputes, which is not a hard observation to make in light of the fact that that is indeed a function they serve. That they are a branch of a government does not mean that the court has appropriated any land; merely that it has settled a dispute as between two entities who both want to use it. This approach may be a fruitful one for further analysis.
Just as existing technology may allow commercial extraction and use of space resources, so may existing law provide a platform for those activities to occur. The treaties do not need to be read to preclude private ownership.
Update 1/13/21: You may download a free version here.
Great focus and agree. Clear, logical, pragmatic.