Property Rights In Outer Space

The final frontier is wilder than the Old West. Beyond the sheer awe of vast and seemingly endless space—who would own property in space?

The classic legal answer: is that it depends. And it depends precariously on the intricacy and interpretation of treaties and international principles established years ago.

The Outer Space Treaty—the main legal authority on space law—provides the international community with guidelines on expected national behavior in space. The treaty entered into force on October 10, 1967. The United States Department of State describes it as the second ever non-armament treaty. And the treaty says that outer space—including celestial bodies and the moon—is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Rather, this treaty purports to treat outer space exploration as the “province of all mankind.”

Some scholars have interpreted this language to assert that all extraterrestrial property rights are banned by the Outer Space Treaty. Others argue that the non-appropriation provision of the Outer Space Treaty applies only to national governments and therefore private parties are implicitly allowed to claim property. If true, imagine the door to the final frontier wide open for private companies to walk through and claim title and ownership to celestial bodies.

Just last year, Rosetta, a European Space Agency space probe was the first to orbit a comet. Its lander module, Philae, made the first successful soft landing on a comet nucleus on November 12, 2015. The lander will drill into the surface, collect data on its composition, and observe critical changes to the comet as it approaches the sun.

Alongside the striking reality that the vast unknown is slowly becoming more known, is the certainty that outer space is prime to become the next place for commercial exploration and expansion.

There has been a lot of privately funded movement to go to space—for more reasons than just scientific exploration. For instance, Virgin Galactic founded by Richard Branson expects to provide leisure travel to the highest reaches to paying tourists on regularly scheduled spaceflights. Spaceport America, a government built spaceport, is a connected development, built in the desert of New Mexico, hosting both: Virgin Galactic and SpaceX. SpaceX led by CEO Elon Musk has already completed contracts with NASA delivering payloads of crew supplies, station hardware and science experiments to and from the International Space Station. SpaceX’s Falcon 9 has made successful landings, first in December 2015 on a landing pad at Cape Canaveral, then in April 2016 on a drone ship named “Of Course I Still Love You.” In May 2016, again the Falcon 9 successfully landed on the same drone ship, but under increased difficulty because of the increased speed during booster separation. Planetary Resources Inc., previously known as Arkyd Astronautics, and founded by multiple billionaire entrepreneurs, intends to expand Earth’s natural resource base with long-term plans to develop a robotic asteroid mining industry. In April 2015, a test satellite was launched and successfully transported into orbit, and thereafter deployed to the International Space Station.,

Considering these transitions in the motivations to develop the space industry and the ever developing technological advances, it seems only a matter of time until the law must move forward to match the technology. However, for now the treaty interpretation debates are best left to legal academics, because the technology for private companies to venture into outer space and establish commercial enterprises is not quite there. Certainly with the recent technological strides, like a space probe orbiting and descending its module onto a moving celestial body, the idea of property ownership in space becomes thought provoking. It is cutting edge and an achievement that will likely change the perspective of comets, asteroids, and planets in the final frontier for many.

-Felicia Carboni