As part of an ongoing discussion at Wired over the need for property rights in space to spur economic development beyond the Earth's surface, Berin Szoka and James Dunstan of TechFreedom agree with arguments advanced by space policy consultant Rand Simberg that private property and entrepreneurship are essential to advancing extraterrestrial exploration. They say, however, that international law forbids the sort of property claims beyond the Earth's surface that Simberg advocates.
Simberg and others argue that Article II of the [1967 Outer Space Treaty] only prohibits national appropriation, leaving individuals free to do whatever they want in space. Well, not so fast. … Launching states are required to ensure that their nationals conduct activities in conformity with the provisions of the Treaty. There is, therefore, no way that the United States could confer the kind of private land grants Simberg proposes.
Instead of unilaterally launching a property rights war with the rest of the world (or even, oddly, renegotiating the treaty), Szoka and Dunstan suggest that entrepreneurs should rely on real and de facto existing property rights.
So what would a truly practical proposal for securing space property rights look like? First, the Outer Space Treaty recognizes full ownership rights in objects and vehicles launched into, or constructed, in space.
Satellites are regularly bought and sold. In 2000, when a private company attempted to lease the Mir Space Station from the Russians, one of us (Dunstan) negotiated the deal — using a standard commercial building lease!
While many international space lawyers once defended the satellite monopoly of Intelsat, an intergovernmental consortium, the rise of PanAmSat in the 1980s clearly established the rights of private companies to operate in space. Similarly, the argument that orbital "slots" could only be allocated for short durations, lest they become "appropriated," has given way to recognition of de facto property rights in orbits.
The authors also see an opening for adapting elements of maritime law for clearing debris and establishing exclusive claims for exploiting space-based resources.
It's an interesting read for those who want to see free enterprise get a toe-hold beyond the planet's surface. Honestly, a true breakthrough in space-based property rights may have to await the Lunar revolution.