Any workable system of extraterrestrial property rights, then, requires more than merely not violating, or creatively inter-preting, existing laws and treaties. Such rights must be legally recognized and enforceable; some form of authority must be involved, and its role (and limits) clearly defined. There must be explicit standards regarding the acquisition and use of property. This is not to say that all legal and regulatory details can or should be determined in advance; the system must be sufficiently flexible to cope with evolving uses and problems. But in broad outline, a property rights system can be conceived, and put into practice, right now.
Two key questions must be addressed: First, who is the relevant authority (and how does it enforce the rules)? And second, how does someone become a property owner? To find plausible answers to these questions, it is worth considering a range of possibilities, including some that have serious drawbacks.
With regard to the question of authority, one can imagine several untenable extremes as well as a viable middle ground. One extreme would be a unilateral assertion of national authority. For example, the U.S. government could abrogate the Outer Space Treaty and declare sovereignty over some or all of the moon (while noting that the American flag is already there). Or, a bit more subtly, a government might extend recognition to certain property claims (probably those of its own citizens or companies) even without claiming sovereignty over the territories in question. Such unilateralism, however, would generate international tensions and, in all likelihood, competing claims by foreign governments. The rights of the supposed property owners--recognized by the courts of only one country--could hardly be said to exist.
The opposite extreme would be excessive internationalism: placing jurisdiction over extraterrestrial property rights in the hands of the U.N., for example, or requiring a global consensus among governments. An international body charged with such responsibility probably would be either powerless (lacking its own enforcement mechanisms) or dangerously powerful--and in either case, lacking the accountability instilled by democratic, national elections. A broad multilateral consensus is, at best, a distant goal, and would require the consent of various regimes that have shown little respect for property rights on Earth, let alone in space.
The middle ground is found in reciprocal obligations among national governments. In such a scenario, the United States and several other countries (possibly a small number to begin with) agree to recognize certain extraterrestrial property claims by private entities of each other's countries (as well as their own). The participating nations explicitly forswear any claim of national sovereignty; long-term questions, about self-governing space colonies and the like, are held in abeyance. Any national government can join the system, provided it agrees to basic standards regarding the validity of property claims (and civil or criminal penalties for their violation). Even private entities located in nonparticipating countries are eligible for property ownership, provided they agree to be subject to the same standards and penalties.
How is any of this enforced? No all-powerful international court is required; the courts of the participating nations adjudicate claims and disputes (in accordance with agreed-upon standards). Nor is it possible to trample extraterrestrial property rights with impunity from outside the borders of the signatory countries. Any product made in defiance of a recognized property claim (using materials extracted from someone else's asteroid, say) is subject to confiscation or punitive tariffs upon entry to a participating nation. Furthermore, any government or other entity using force to override a property right is subject to military action as well as economic sanctions. And these penalties all can be implemented on Earth; at least for the foreseeable future, no space-based army or police force is required.
Regarding the initial acquisition of property rights, here too the system's viability may depend on its capacity to balance competing approaches and priorities. A venerable legal tradition, traceable to ancient times, supports the granting of ownership to the first entity that literally sets foot upon a particular territory. Yet modern courts also have recognized certain territorial claims established without a direct human presence, as when salvage firms explore undersea wrecks via remote-controlled cameras. By analogy, one can imagine a hierarchy of claims in space: Full ownership of territories (of specified size) might be reserved for entities that conduct manned missions or establish human settlements. More limited forms of ownership (mining rights, for example), or simply smaller land grants, might be allocated to entities that send robotic probes to survey a territory (to a specified degree of precision).
Some proponents of manned space exploration oppose the notion of granting property rights based on robotic expeditions. Alan Wasser, a board member of the National Space Society, argues that such rights would diminish the incentives and prospects for human space colonization. Why, he writes, "would we want to give someone a land grant for some small step and allow them to do nothing more for the next 20 years except stop anyone else who is ready to settle and develop the land?" This argument is questionable even if one shares Wasser's priorities. Robotic missions might well provide the technological and economic underpinnings for subsequent human activities. And robotic missions may have economic and social benefits in their own right and for that reason alone be worthy of property protection.
Extraterrestrial property could also be allocated through procedures requiring no physical staking of claims by either humans or robots. As a few space enthusiasts have suggested, governments might simply auction unused or unexplored portions of celestial bodies to the highest bidders. A rough precedent can be found in present-day auctions of intangible assets such as use of the electromagnetic spectrum. But such an approach, whatever its benefits in generating public revenue and assigning immediate value to the properties, should be used sparingly, if at all. Weakening the link between territorial claims and actual exploration could undermine the perceived legitimacy of the property rights system, and so could the implication that the properties were "public" in their initial state. That notion could open the door to property distributions based on interest-group politics or arbitrary government power.
However they are initially established, extraterrestrial prop-erty rights will have little meaning unless they are transferable. One can imagine a brisk celestial property market taking shape as territories and resources are bought, sold, consolidated, subdivided, and speculated upon (with speculators providing much-needed liquidity and risk tolerance). Properties could even be linked to new types of "derivative" instruments--Martian deuterium futures, say, or lunar Real Estate Investment Trusts--tailored to various investor needs. Such financial "rocket science" might prove almost as important as the nuts-and-bolts type in creating a prosperous extraterrestrial economy.
Would such a property rights system result in dominance of space by some narrow economic elite? To the contrary, space is likely to prove hostile to concentrations of economic power. The territories and resources involved are vast; the markets are new and unpredictable. A company owning a dozen asteroids may find that it is just a bit player in the larger scene. The workings of a shareholder economy may distribute ownership among a broad public, and entrenched terrestrial industries may encounter new competition from space. Will the Third World be left behind? The current proliferation of space technology indicates otherwise, as nations such as India, Brazil, South Korea, Turkey, and Malaysia venture into the commercial satellite industry and other space-related fields.
To be sure, any attempt to create an extraterrestrial property rights system will draw resistance. Social critics might argue that celestial bodies are "the common heritage of mankind" and should be shared accordingly. The burden will be on them, however, to explain why socialism would work better in space than on Earth. Environmentalists might argue that such bodies are emphatically not the "heritage" of mankind and thus should be owned by no one. But as noted earlier, it is the absence of property rights that creates incentives for wasteful exploitation of celestial bodies. Moreover, space industries may provide crucial environmental benefits to Earth by tapping cleaner forms of energy and allowing pollution sources to be located far from human populations.
The debate could be a vociferous one, but it is well worth having. Property rights and free markets are too important to be confined to a single small planet.
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