Private Property in Space

Private Property in Space


In the 1980s, Dennis Hope established the Lunar Embassy, which sells certificates of ownership to one-acre plots of land on the moon. Right now, these certificates are not officially recognized by any country, but over 2 million certificates have been sold; obviously people are willing to pay money for extraterrestrial property, even if only as a novelty item. But, with the rise of the nascent private space industry, the novelty aspect of these certificates may soon change.

Nature.com published an article called I'd Buy You the Moon (republished here). Among the main points covered in the article are these:

...A growing body of financiers, lawyers and space enthusiasts believe that the recognition of personal property rights 'out there' is the only realistic way to finance the new frontier of commercially driven space exploration.

...the 1979 Moon Treaty, which states that no pieces of the Moon can become property of any "state, international or national organization or non-governmental entity or of any natural person". But, perhaps because the prospect of any risk in this area seemed so far away, hardly anyone signed: only 12 countries agreed, none of them major players in the space game.

..."The Outer Space Treaty is ambiguous as to the precise nature and scope of the property rights that an individual may hold in celestial bodies," says California-based space law expert Ezra Reinstein. Glenn Reynolds, who teaches space law at the University of Tennessee, Knoxville, goes further. "Personal property rights are not banned by the Outer Space Treaty."

Mark Whittington published an article in Associated Content last week called The Case For Private Property Rights on Other Worlds. However, the content of the article didn't really match the title:

... The pertinent article of the [UN Outer Space] treaty is Article II, which reads, “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.” The problem is that private property rights are determined and defended by a sovereign nation. Absent sovereign authority, property rights can be determined by international treaties. But with sovereign authority forbidden on the moon and “other celestial bodies” and no international treaty governing private property on other worlds, there is literally no body of law governing such things.

... By the way, organizations such as the “Lunar Embassy” claiming to have the power to sell lunar land are, in the opinion of this writer, perpetrating a fraud. There is no body of law suggesting that one actually owns the land which such organizations “sell.” The parcels of land being sold have as much worth as the paper upon which the certificates are written on. One might as well buy the Brooklyn Bridge.

... There are two ways that private property rights can be established on bodies such as the Moon ... the United States could withdraw from the Outer Space Treaty and claim the Moon as national territory ... [or] by international agreement, either as an amendment to the Outer Space Treaty or as a brand new treaty. It would be a treaty which—unlike the Moon Treaty—would define and defend private property rights on other worlds rather than oppose them.

Obviously, there is considerable disagreement as to whether private individuals may own extraterrestrial property. I think that the reason for the disagreement is encapsulated in the assertion by Mark Whittington that "private property rights are determined and defended by a sovereign nation".

In fact, this is demonstrably false. For example, look at what happened in Cuba after the revolution: far from defending the private property rights of landowners, the government confiscated their property. The government of Zimbabwe recently confiscated land from white farmers. Similar examples of state confiscation of private property have occurred so often, in every country on Earth, that enumerations of such examples would go on and on and on. Even in the United States, the most capitalistic country in the world, there are a great many examples of the government confiscating private property: just ask Suzanne Kelo.

Private property is not de jure, it is de facto. In many cases on Earth, there are laws which govern the disposition of private property, but these laws have come about long after the concept of private property was in place. Proof of this is easy - the first written laws, among them the Codex of Hammurabi and the Ten Commandments, include prohibitions against theft; without the concept of private property already firmly established, such prohibitions would not even occur to the lawmakers.

To the extent that sovereign nations do "determine and defend" private property rights, it is only the relative power of the state with respect to individuals that makes this possible. The ability of sovereign nations to confiscate private property is also only possible due to the relative power of the state compared to individuals. It may seem harsh and uncivilized, but when it comes to private property rights, might truly makes right.

So, what does this mean for those hopefuls who wish to own portions of the moon or other bodies in the solar system?

First of all, one cannot expect Earthly sovereign nations to protect whatever private property is claimed off the planet Earth. Those who wish to claim property must be able to defend it themselves. It is all well and good for the Lunar Embassy to sell acres on the moon, but if those who purchase the deeds (or the Lunar Embassy itself) cannot defend those property claims, then they have no recourse if those acres are claimed by someone else who can defend their claim on that property.

To quote from the Wikipedia entry on private property:

In his classic text, "The Common Law", Oliver Wendell Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession.

I submit that the "title" aspect of property is the aspect to which Whittington, Dennis Hope, Glenn Reynolds and others are referring when they speak of property rights in space. Further, absent a universally-recognized (well, at least solar-system-wide-recognized) police force and/or government to uphold the value of title, title becomes moot; it is only the possession that matters.

Of course there are no individuals or organizations right now who actually have possession of portions of the moon or asteroids or other bodies, either. However, the ability for them to take such possession will of practical necessity predate the ability of a sovereign nation to enforce title; title will be a de jure recognition of a de facto reality.

There are steps that earthly governments may take to make this recognition of title more difficult. The first such steps have already been taken, in the 1979 Moon Treaty. In a nutshell this treaty (quoting Wikipedia again) both "bans all exploration and uses of celestial bodies without the approval or benefit of other states" and "bans any ownership of any property by any organization or person, unless that organization is international and governmental." This means that if any profit is made from use of an extraterrestrial body, then such profit must be shared with every nation on earth, regardless of those nations' contribution to the development of that profit, and that no private entity can profit from development in space.

Thankfully, no spacefaring nations have ratified this treaty. A further step ought to be taken: the annulment of the Moon Treaty. As it is, several dozen private companies worldwide are working towards developing access to space, and it is only a small step from there for them to reach for the moon or near-earth asteroids. Once they succeed (and though there will be many failures, some will eventually succeed), they will take de facto possession of extraterrestrial property. Recognition of title will not matter, and those 12 countries that have ratified the Moon Treaty (in particular Australia) will find themselves at a competitive disadvantage with respect to those nations which have not ratified. It is better to simply abandon and annul the treaty as unworkable.

By the same token, sovereign nations may make it easier for private enterprise to have title to extraterrestrial objects. This does not require a treaty, only a national law pledging to recognize title to whomever takes physical possession of an extraterrestrial body. And, it does not matter which nation passes such a law: once one nation does so, then title is officially recognized by a sovereign nation upon physical possession. Title recognition would not require that the sovereign entity itself claim possession of the celestial body; it would only be a recognition of a physical fact. As I have said earlier, title will not matter to those who are in physical possession, but the recognition of title once physical possession is realized will be a good first step along the way to turning de facto property into de jure property.

One way for such a country to structure the recognition of private property on celestial bodies would be to follow the example of the Archimedes Registry. The registry is a "private international system of property registration ... which set forth the standards for claiming and transferring space property". The guidelines of the Archimedes registry provide a good starting point for the development of national laws or international treaties for the recognition of private property title claims on extraterrestrial bodies.

Update: The Space Show had a couple of interesting podcasts on this topic: this one (right click, save as) with Virgiliu Pop and this one with Jim Dunstan, Rosanna Sattler, Berin M. Szoka, and Wayne White. Both are entertaining and worth a listen.

Technorati Tags: Space, Moon, Asteroids, Private Property, Kelo, Archimedes Registry