private property in space, redux

Recently in Reuters there was a rather tongue-in-cheek article about the increase in value of lunar property over the course of 2007. Mark Whittington posted (scroll down to December 18, 2007, 9:20 am; I can't make his permalinks work properly) that he was

...somewhat agog at the news that lunar land prices are booming. Mind, no one can actually own lunar land, for various reasons, and people who think that they do actually own pretty pieces of paper. Still, it shows that there is a market if an arrangement could be made for people to legally own lunar real estate.

It is reasonable to assume that Mark's assertion that "no on can actually own lunar land" is based upon the 1967 UN Outer Space Treaty, since he wrote about this last year in an article in Associated Content:

The pertinent article of the 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.

The key phrase in the above quote, and the axiom upon which the remainder of his argument rests, is that "private property rights are determined and defended by a sovereign nation". However, the concept of private property precedes the establishment of sovereign nations or even the idea of laws. The very earliest formal laws - the Codex of Hammurabi and the Ten Commandments - both contain prohibitions against stealing; such a prohibition would be utterly meaningless without a prior widespread acceptance of the concept of private property. Furthermore, every parent has experienced their child going through the "MINE!" stage, wherein the child lays claim to all he sees or touches. Clearly the concept of private property predates laws and sovereign nations and may even be an intrisic part of human nature.

I discussed this at length last year, but this issue just keeps coming up. So, I want to expand on what I wrote last year and talk about the enforceability of the 1967 Outer Space Treaty (and by extension the 1979 Moon Treaty). In the Enforceability of Law, F.S. McNeilly states that

'the law is enforceable' means (a) provisions exist for forcing people to conform to the law who if these provisions did not exist might not conform, and (b) the existence of these provisions is adequate to ensure a sufficiently high degree of conformity to the law.

To see how both these treaties are unenforceable when applied to private individuals, let's do a bit of a thought experiment. Suppose that, after a few years of successful launches of the Falcon-9, Elon Musk builds an even bigger rocket, capable of delivering a sizeable (say, several tonnes) payload to the asteroid (6178) 1986 DA for a few dollars per kilogram. Suppose further that Rand Simberg comes into a large sum of money and uses that to purchase the SuperDuperFalcon rocket and launch a payload consisting of machinery (either painstakingly teleoperated, autonomous, or some combination thereof) capable of mining and smelting material on the surface of that asteroid. Who owns the pure iron, nickel, and other metals on that asteroid? Rand Simberg, of course.

Now suppose that Keith Cowing (not to impugn your character, Keith; I just needed a name recognizable to the space geeks out there) also comes into a lot of money and buys his own SuperDuperFalcon rocket and launches a payload to that same asteroid. The payload just happens to be a machine that takes the pure iron mined by Rand, melts it, adds some carbon, and produces steel I-beams and steel panels - without any sort of purchase agreement between Keith and Rand. If Rand can successfully defend his mined material, then Keith's machine is disabled or destroyed when it lands on (or, more accurately, docks with) that asteroid. If Rand cannot defend his property, then Keith's machine takes possession of that property and the resulting steel I-beams become Keith's.

In the above thought experiment, no provisions exist for enforcing the 1967 treaty, since the actors involved are not sovereign nations, they are private individuals. Of course both those men are US citizens, so US law would apply to their dispute. However, let's extend the thought experiment a little further, and assume that Keith's steel-making machine successfully takes Rand's iron, and the I-beams and other steel products are formed into a space station to which Keith launches himself (declaring himself King of Cowingtopia and disavowing his US citizenship). Now suppose that this doesn't happen just once, but thousands of times with thousands of individuals from nations all over the earth, all within the span of a few years after the SuperDuperFalcon becomes available.

How could the Outer Space Treaty be enforceable in that case? Space Police? Have a look at these diagrams:


Ever called the police in an emergency? In a best-case scenario, there might just happen to be a cop cruising around within your neighborhood and you'll get a response within a few minutes. Now consider the size of the asteroid neighborhood - what are the chances that the SpacePolice would have a cruiser close enough to make a difference during a theft like the one I describe above? If you guessed somewhere between "zero" and "HAHAHAHAHA", you're right. There are over a million asteroids bigger than 1km in size in the main asteroid belt; that number rises to over 1 000 000 000 000 000 when including all bodies over 100 meters across throughout the solar system. Even a SpacePolice force a billion men strong would be inadequate to police them all, and response times would average in the weeks, months, or even decades if one goes out far enough. The only ones who would be able to protect private property rights would be those individuals who actually possessed and were able to defend their own hunk of rock.

So, if enough people go out there and start claiming asteroids, there is no way that the UN or any imaginable SpacePolice force could "determine and defend" private property rights. No provisions could conceivably exist for forcing people to conform to the UN Outer Space Treaty. The only way to enforce the treaty is to prevent private individuals from going (or sending their robots) out there, forever and ever. Come to think of it, that explains a lot about NASA's actions over the last 35 years.