The Outer Space Treaty at 50 - Property Rights

The Outer Space Treaty of 1967 is now 50 years old, having entered into force on October 10 1967. The treaty prohibits weapons of mass destruction in space, tells nations to supervise their space activities, and declares that no sovereign nation may claim any celestial body, and other things. The State Department's website contains the full text of the treaty. In this post we'll discuss the ways that countries approach property laws in space while still abiding by the Outer Space Treaty's rules.

Article II of the Outer Space Treaty reads as follows:

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.

We'll start by looking at laws on the books which touch on property rights in outer space, then we'll talk about proposed policy, quote some "thought leaders" on the subject, and finish with some ideas from some advocacy groups.

US Laws

The Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015 includes a section pertaining to ownership of resources extracted from asteroids.

A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.

The following clause is also included, which is an obvious reference to the Outer Space Treaty.

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

Note that the law specifically pertains to an "asteroid resource" not the asteroid itself, according to these important definitions:

  1. ASTEROID RESOURCE.—The term ‘asteroid resource’ means a space resource found on or within a single asteroid.

  2. SPACE RESOURCE.—

    A. IN GENERAL.—The term ‘space resource’ means an abiotic resource in situ in outer space.

    B. INCLUSIONS.—The term ‘space resource’ includes water and minerals.

Presumably, this definition of "space resource" is specifically meant to target water ice in the permanently shadowed regions of the polar craters on the moon.

Luxembourg

July 13, 2017, "Law on the Exploration and Use of Space Resources (English Translation)" (pdf)

Article 1. -

Space resources are capable of being appropriated.

The law does not say what "space resources" are, but it does say a couple obvious things they are not.

This Law shall not apply to satellite communications, orbital positions or the use of frequency bands.

Most of the 19 articles in this law detail the exact hoops a company must jump through in order to gain approval for appropriating space resources, but does not give any additional details on the nature of a space resource of what the limits of appropriation are.

Proposed Policy

The first example is a bill sponsored this year by Lamar Smith, chairman of the House Science, Space, and Technology Committee. He's important because it's somewhat common wisdom that if the chair of the committee gets behind space-related legislation, the rest of the House or Senate members will probably fall in line. This phenomenon for space-related legislation is in contrast to more controversial issues like health care, for instance.

Lamar's proposed American Space Commerce Free Enterprise Act of 2017 states the following.

(1) United States citizens and entities are free to explore and use space, including the utilization of outer space and resources contained therein, without conditions or limitations;

(2) this freedom is only to be limited when necessary to assure United States national security interests are met and to authorize and supervise nongovernmental space activities to assure such activities are carried out in conformity with the international obligations of the United States under the Outer Space Treaty;

(3) to the maximum extent practicable, the Federal Government shall interpret and fulfill its international obligations to minimize regulations and limitations on the freedom of United States nongovernmental entities to explore and use space;

The bill also touches upon the role of the President to protect those who are engaging in the exploitation of space resources.

§ 80111. Protecting the interests of United States entity space objects

The President shall ensure that United States entity exploration and use of outer space, including commercial activity and the exploitation of space resources, is secure from acts of foreign aggression and foreign harmful interference and is given due regard, and the President shall uphold the ownership rights of space objects of United States entities. Space objects certified under this chapter shall receive the full protection of the United States.

Another piece of legislation is the American Space Renaissance Act introduced by Jim Bridenstine, who is now nominated to be Administrator of NASA. This bill was not intended to become law in its entirety but more to provide pieces of legislation that could be included in other bills. There is nothing in this bill about ownership of space resources, but it's an interesting read.

Other thoughts

I have heard it argued that Article II applies to states only, not private companies. In this case, a private company or individual could appropriate some part of the moon. Lawyers would be able to tell you more about what constitutes possession of the land, maybe it would include continuous occupation or something. The state parties would not need to be involved at all.

I have also heard that it should be possible for states to recognize property rights while not claiming ownership of the land. With these thoughts, the United States would be able to recognize the claims of individuals or companies to parts of the moon or other celestial bodies. However, the United States would not own that land. There is an analogy with deep sea resource mining here.

Another thing to consider is the method in which China allocates property. No Chinese individual or company owns property, instead they lease it from the Chinese government for 20 to 70 years. Cases are starting to come up surrounding the renewal of these property leases.

One interesting resource about all of these topics is Laura Montgomery's blog, http://groundbasedspacematters.com. Another resource is the Space Settlement Institute.

© Peter Brandt 2019 | all images in public domain unless otherwise stated