Of Note: The Battle for Celestial Property Rights

Over a hundred and fifty years ago, so the story goes, rough and tumble American speculators looked westward across the continent and raised the cry "there's gold in them thar hills!" sparking the gold rush and hastening the final taming of the American frontier. A century and a half later, entrepreneurs, scientists, and even developers have begun to look skyward, to the "final frontier," with equal relish. Yet now, as then, the rules guiding ownership of what is extracted there are less than clear, and the stakes are high.

In addition to holding great promise for the burgeoning field of space tourism—pioneered by Microsoft co-founder Paul Allen, and Virgin CEO Richard Branson—space is also rich in resources that are scarce on Earth. Advocates of building a hydrogen economy to reduce our dependence on fossil fuels point to the huge quantities of frozen hydrogen located around the Moon's permanently shadowed south pole, and to the Moon's subsoil, which contains large quantities of light metals required for building hydrogen storage facilities. The Moon also holds vast reserves of helium-3, which scientists believe can be used to produce nuclear energy with minimal radioactive waste.¹ The asteroid Eros, which orbits our sun and passes near Earth, is believed to contain $20 trillion worth of precious metals, including more gold and silver than have been mined in all of human history.²

Yet there is currently no clear legal framework governing private property rights in space. The bedrock of all space law, the United Nations' 1967 Outer Space Treaty, reflects Cold-War concerns in that it proscribes national appropriation of celestial bodies, but is largely silent on the question of private commercial exploitation. The UN's 1979 "Moon Treaty" sought to clarify the issue by outlawing ownership of the Moon by any state or non-governmental organization, but none of the major space powers signed it, because it implied that any profits from space development would have to be shared with all nations.

These ambiguities have had bizarre consequences. In 1980, entrepreneur Dennis Hope registered a claim—seen as illegitimate by much of the space law community—to ownership of the Moon in a California assessor's office, and his "Lunar Embassy" has since used the Internet to sell over $10 million worth of lunar "property." In 2001, Californian Gregory W. Nemitz claimed ownership of Eros, and subsequently tried, unsuccessfully, to charge NASA "parking fees" when one of its craft landed on the asteroid in 2004. Not to be outdone, Romanian space lawyer Virgiliu Pop has recently claimed ownership of the sun, and suggests that it is within his rights to charge humanity for sunlight. These quirks aside, experts disagree on whether the lack of a property rights regime is an important impediment to expanding the commercial development of space.

Jim Dunstan, a partner at the Washington office of law firm Garvey Schubert Barer, who has published widely on space law, believes that the legal status quo is good enough for the time being, and that the huge investments and long-lead times involved are the real culprits in limiting space development.

"I don't believe that what is stopping further investment is the lack of private property regimes," he said in a recent interview. "That's a cop-out. It's not the law lagging behind investors, it's investors lagging behind investors." Dunstan points out that the collection and exchange of moon rocks as "national treasures" by the United States and the USSR established a de facto precedent for space property appropriation, and that the private space company MirCorp's February 2000 lease of the Russian space station Mir sets a sufficient precedent for private property transactions in space. From Dunstan's perspective, it would be foolish to construct a space property rights regime now, because the private commercial development of space is still in its infancy, and lawmakers cannot anticipate the kinds of issues, technologies, and conflicts that...