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Space Property Rights: It’s Time, and Here’s Where to Start

Fortunately, what’s needed to drive private investment isn’t the right to own a plot of land on the Moon or resell it to raise capital. It’s the rights sought by Bigelow: to extract, use and profit from extraterrestrial resources without interference. Credit: Deep Space Industries artist's concept

‘We can lick gravity,” quipped Wernher von Braun, “but sometimes the paperwork is overwhelming.” 

Robert Bigelow is trying to do what von Braun could only dream of: Build a Moon base — and a profitable one at that. He’s not just dreaming. Funded by his hotelier fortune, Bigelow Aerospace already has two autonomous prototype habitation modules in orbit. Another Bigelow module is headed to the international space station next year. The company plans a full-scale space station once domestic crew transportation becomes available. 

But as for von Braun, Bigelow’s challenge isn’t merely technological (or economic). Just like the first private rocket company 30 years ago, Bigelow Aerospace needs sign-off from the U.S. government — and again, there’s no clear path forward. The company also needs two other things, as Bigelow himself made clear at a press conference in November. First is the U.S. government’s assurances that it won’t allow other U.S. companies to interfere with Bigelow’s operations. Second, obviously, Bigelow must own any resources it mines: minerals, water, rocket fuel, etc. 

“Without property rights, any plan to engage the private sector in long-term beyond [low Earth orbit] activities will ultimately fail,” declared a recent report Bigelow produced for NASA.  

Far from seeing the company as competition, NASA “finally understands the need for such public-private partnerships,” says James Pura, president of the Space Frontier Foundation, an organization long critical of NASA’s traditional go-it-alone approach but which has cheered the agency for buying commercial cargo and crew transportation services to the international space station.

Not everyone is onboard, though. In the Dec. 9 issue of SpaceNews, space lawyer Michael J. Listner insisted that “The Time is Not Ripe To Tackle Space Property Rights” [Commentary, page 18]. He’s right: The United States needs to tread carefully. But he falls into the typical trap of lumping all “property rights” together — and thus defaults to calling for careful international negotiation, the last refuge of most space lawyers. 

While resolving disputes among companies from different countries may indeed require some kind of negotiation, the U.S. government can and should address Bigelow’s other two problems by exercising its jurisdiction over U.S. companies to (1) recognize Bigelow’s ownership of extracted resources and (2) bar interference with Bigelow’s operations by other U.S. companies. 

Listner is also wrong that Bigelow is alone in pushing the issue: The U.S. Federal Aviation Administration’s (FAA) space industry advisory council just unanimously approved a resolution calling for precisely what Bigelow wants. 

Many blame the lack of space “property rights” for the lack of commercial success beyond Earth orbit. Some insist governments need to incentivize development of the Moon, our “eighth continent,” by giving away huge tracts of land to the first companies to build bases. Such celestial land grabs are specifically outlawed by Article II of the Outer Space Treaty of 1967, whether such claims are made by countries or by private entities. 

Fortunately, what’s needed to drive private investment isn’t the right to own a plot of land on the Moon or resell it to raise capital. It’s the rights sought by Bigelow: to extract, use and profit from extraterrestrial resources without interference. These are not only consistent with international space law, but required by it. Article I of the treaty guarantees free access to explore “and use” space. Article VIII explicitly recognizes that ownership of facilities and vehicles isn’t changed by being in space. Article IX implies that the United States could recognize a limited exclusive “safety” zone around such facilities to protect against harmful interference.  

Bigelow’s territorial rights would be limited in scope, contingent on ongoing operations, and not absolute — lest they constitute territorial “appropriation,” which the treaty explicitly bars. Article 9’s noninterference clause is a two-way street: Depending on where Bigelow sets up operations, in order to allow for “the corresponding interests” of others, it might have to allow others some limited form of access through its safety zone — think easements. But none of these limitations undermines the core function of property rights: to operate without interference and exclude others from the revenue stream generated by finding and utilizing extraterrestrial resources. 

Customary international law already recognizes that extraterrestrial materials brought back to Earth can be owned and sold — just like the thousands of space meteorites available today on eBay. The U.S. and Soviet Union both claimed ownership in lunar resources extracted and returned to Earth, and exchanged samples without international objection. (The 1979 Moon Agreement would have banned appropriation of extraterrestrial materials in space but has been ratified by only a handful of countries, and was firmly rejected by the U.S. Senate.)

Bigelow’s one small legal step — within the Outer Space Treaty — would be one giant leap for space development. But Bigelow faces the same problem the first private rocket company had in 1981: Which U.S. agency has authority? 

Officially, no one — but the FAA’s Office of Commercial Space Transportation (FAA/AST) has general responsibility to ensure that all U.S. launches and payloads comply with the international obligations of the United States. The “payload review” process allows companies like Bigelow to get that determination long before they’re actually ready to launch — a vital mechanism for removing uncertainty that might otherwise chill new ventures. And besides, FAA/AST has earned great respect for both its unique expertise and how well it has balanced its dual missions: protecting the public while promoting the launch industry. 

Even with strong support for commercial space development from President Barack Obama, it’s not entirely clear what will happen to Bigelow’s request in the opaque interagency coordination process. While NASA leadership talks about the importance of commercial ventures, its old guard still equates “space” with “NASA.” The State Department has primary jurisdiction over international issues and is generally extremely cautious. The Defense Department tends to be even more cautious, perhaps fearing that greater clarity might reduce its “freedom of action” in some hypothetical military space scenario.

Perhaps the biggest problem with Bigelow’s approach is that FAA/AST’s statutory authority is limited to launch and re-entry. Politically, this statutory gap could be used as a pretext by those uneasy about any discussion of how to operationalize the treaty’s vague principles. (It also means whatever clarity a payload review might provide about property rights may be tempered by the possibility of future legal challenges to FAA/AST’s jurisdiction.) 

But doing nothing isn’t an option. Article VI requires the United States to provide “authorization and continuing supervision” of what U.S. companies do in space to ensure compliance with the treaty. In practice, that means every time a private company pushes the boundaries of the space economy, the U.S. government has to do something — and that “something” is usually going to sound a lot more like “regulation” than “property rights.”

When Space Services Inc., the first private rocket company, sought permission to launch the Conestoga 1 in the early 1980s, it required approval from 17 government agencies. The U.S. government was unprepared to regulate the activities of American companies in space — as Article VI requires. Congress scrambled to respond, finally passing the 1984 Commercial Space Launch Act. FAA/AST has since licensed more than 200 launches and re-entries, making possible the private launch industry critical to the success of every other private venture in space.

Similarly, the entire global satellite industry rests on the elaborate international system that has evolved since the 1960s for coordinating national radio frequency spectrum regulations. The International Telecommunications Union coordinates the assignment of orbit slots based largely on the demonstrated ability to use them as early as possible. The assignees don’t own those slots. They’re merely exercising their right under the treaty not be interfered with for some period of time. Bigelow merely wants the same thing on the Moon. 

But if Bigelow gets the answers he needs out of the executive branch, this may be more a catalyst for congressional action than a permanent solution — just as with rocket launches back in 1984. Congress will eventually have to clarify who (FAA/AST? Commerce Department?) has jurisdiction over lunar (and asteroid) activities, and to govern interference between U.S. companies. Domestic legislation could lay the groundwork for minimizing interference between companies from different countries. That’s what the United States did with a 1979 law that recognized deep seabed mining claims (of limited duration) issued by any country with compatible legislation. This can all be done without territorial appropriation — consistent with the Outer Space Treaty.

By 2044, with any luck, the U.S. government will have issued more than 200 licenses to U.S. companies reaching out to do something productive to the Moon and asteroids. Without that kind of activity, we — NASA, would-be miners and everyone else — will all be stuck on this rock, probably still arguing about whether the “time is right” to let space commerce take off.

 

Berin Szoka is president of TechFreedom, a technology policy think tank, and ex officio chairman of the Space Frontier Foundation. Jim Dunstan is principal of Mobius Legal Group PLLC and a TechFreedom senior adjunct fellow. This op-ed reflects the views of TechFreedom and the Space Frontier Foundation.

Article Comments

I enjoy having someone disagreeing with me, but I would point out a few fallacies:

First, your article presumes that the international community will stand by while U.S. companies profit from the extraction of extraterrestrial resources. They will not. Many in the international legal community are very concerned about this issue and there will be a fuss made about it. There are companies who recognize this and attempting to create a dialogue with the international community to come to an understanding, but they are aware that it could fail. Acting like a bull in a china shop will not help space property rights and Bigelow's attempt will likely fail and the only thing it will accomplish is to create a more toxic legal and political environment for space property rights.

Second, your article does not mention the role of geopolitics, which will figure in heavily for space property rights. We're still the big kid on the block but politics and soft power will figure into the equation. If there is any doubt about that look into the closest analogy, which is resource extraction rights in seabed mining. Ironically, the legal structure surrounding seabed mining is used as a possible solution to extraterrestrial resource mining by prominent space lawyers.

Third, your interpretation of the Outer Space Treaty is very loose and inaccurate, especially will the term "use". Treaties have to be read in their entirety and your interpretation of "use" would not be consistent with with Article I.

Fourth, international negotiation is not the "last refuge of space lawyers", but it is necessary to include the space lawyers because we are the ones along with policymakers and diplomats who will eventually come up with a solution to the thorny issue of space property rights when the time is ripe.

Thank you for a great article.

I would also challenge your contention that customary international law already recognizes that extraterrestrial materials brought back to Earth can be owned and sold. Customary international law is tricky. Suggest you read States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), which articulates the test of customary international law recognized by the U.S. federal courts.

I think that does not properly allocate the burden of production, and may be why the authors did not walk through the elements of custom. Customary International Law never *creates* rights, it only creates obligations. Sovereignty is equally enjoyed and unburdened, except where a duty is created.

In the absence of objection by States to the handling of extraterrestrial resources we cannot find a sense of legal obligation that was breached by that handling. Either under the positive law of the treaty regime or in custom. The proponent bears the burden of showing the presence of a legal obligation, not the presence of a legal authorization or right.

Compare to the freedom of overflight for satellites. If it were necessary to create a right to overflight by positive or customary international law then every incident of overflight prior to the establishment of that customary right would be a breach of an obligation under international law entitling the overflown States to reparations for that breach. So some number of overflights would constitute a breach and overflights after the existence of the custom would no longer constitute breaches. Of course, that is not the case. The first and subsequent overflights were not credibly objected to in the eyes of international law. From sputnik onwards States do not have a duty to obtain consent to orbit satellites over overflown States. That duty has never existed.

However, it became a *settled matter of international law* that States did not have a duty to obtain consent to orbit satellites when States did so without consent and without credible objection. Similarly, it is a settled matter of international law that the handling of lunar materials by the US and CIS has not breached an obligation under international law, positive or customary, because there have not been credible objections.

Therefore, customary international law has not produced a duty which would clearly bar the activities proposed in the article above. And the burden of production lies properly with the proponent of such a duty.

Even under your supposition there has not yet been a settled practice of mining extraterritorial resources for profit. The case of the sale of Russian lunar samples and the rationalization by the court that "approved" it is not really widely accepted because no other nation that has recovered lunar samples has sold them. In fact, the United States considers the Apollo samples "national treasures" and it is a federal crime to sell them and they cannot be privately owned. One of the nuances of custom is that for a practice to have any meaning a nation with standing must be involved in the activity, so if the private sale and recovery of lunar resources is to ever become custom then a country like the United States must recognize it and the international community must for the most part no object. I would argue that since the United States doesn't allow any of the Apollo samples to be sold or privately owned that would argue against a customary principle. The Russian lunar sample sale raised little objection, but trying to use it as precedent for potentially trillions of dollars in wealth without objection is unrealistic and it is far from being settled customary law or practice.

The article is spot on - the U.S. should implement regulations protecting and recognizing the actions of U.S. companies without waiting for international legal consensus. As for international push-back if we forge ahead, this is not the 1970s when the Soviet Union was still peddling communism and China led the "non-aligned bloc" favoring a global tax on any wealth from space activities. Now even China has its own rover on the Moon and its own incentive to directly reap the rewards of its space investments. As long as U.S. companies keep reminding the global public that space is vast and there's plenty to go around for those who make the effort, we should start at home with regulations and provide a pattern for other nations to emulate. Let international space law follow practice, rather than precede it.

If anything the geopolitical environment is more complex than it was in the 1970s and resource extraction is equally complex. If as you suggest there would be little international push back, then why are we hesitant to forge with seabed mining in spite of the International Seabed Authority? Accessing mineral resources from the seabed is less intensive and less expensive than mining asteroids and the Moon, which would argue in favor of allowing U.S. companies to extract mineral wealth regardless of the Authority, yet it is not happening.

Just a note, the first commercial space launch license was issued to the University of Alabama in Huntsville in 1989 by the Department of Transportation.

Deke Slayton's Conestoga launch from Matagorda Island was complicated by the fact that he was using a decommissioned Minuteman 1 second stage vehicle from a non standard launch site.

For as long as the costs of space transport are this high, there will be no serious international discussions on this. For the time being, importance of international law is slightly overestimated, both by lawyers and non-lawyers. There are no human actions to be regulated, and for at least a decade or longer there will still be none.

I'm not from US, but I suppose the US could prohibit any of its citizens or juridical persons to do anything it wishes to prohibit, both on Earth or in outer space. As regards the non-US entities, some measures like protection by means of criminal law sanctions of the US private entities hardware in space should suffice. No serious non-US company (at least any one of the type having the financial resources to go to space) would risk messing with the US.

I suppose the problem with deep seabed is similar: there is still no economic justification this big to go there. We overestimate the importance of law.

International law, as it is now, is just fine, ensuring almost total freedom to explore and to exploit, and prohibiting to prohibit.

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