Space Is an Opportunity To Rethink Property Rights

Displayed near a triceratops skull in a small gallery in Cambridge, England, you can find a bit of moon rock on sale for just under $40,000—or you could have found it for sale, if only you'd arrived sooner. A red "sold" sticker is attached to the label that identifies the rock as a "lunar sphere."

Never mind, you think—there's plenty more where that came from.

It's not as simple as that. That space rock represents a rare opportunity, similar to a vegetarian making a moral exception for roadkill. It wasn't deliberately extracted from the moon by someone claiming it for themself or planning to sell it to you. Something randomly bashed into the moon approximately 4.5 billion years ago, and a particular bit of moon debris got knocked loose and landed in the Sahara Desert. If you wanted to buy a piece of moon rock that's currently up there orbiting Earth, you'd have to break international law.

Except, surely, for the complication that international law only binds states. This points us to one of the most frustrating things about space law: It's all very debatable. Big players make big claims about rules' core features, with mutually exclusive implications.

Take the 1967 Outer Space Treaty (OST). Still the vanguard of space regulation but written at the height of the space race, the OST's core goal is peace. It commands that astronauts "shall be regarded as the envoys of mankind," that stationing weapons of mass destruction in space isn't permitted, and that "national appropriation" is also forbidden. Unlike more minor space agreements, such as the Moon Treaty, the OST binds all the key spacefaring nations and many others besides: 112 countries are currently party to it. But the situation is complicated by questions of interpretation.

Consider that ban on "appropriation." What exactly does the treaty forbid, and to whom does this apply? Some have tried to argue that the OST's focus on the national level leaves space open for individuals to stake claims—although it's almost universally accepted that a prohibition on individual appropriation is baked into the national prohibition. More convincingly, while some interpret the treaty as outlawing the appropriation of anything at all, others claim that its nonappropriation principle pertains only to the "physical domain," meaning "void space" and "celestial bodies." Under this interpretation, the OST shouldn't be assumed to prohibit the extraction, or even ownership, of resources found "on or in" such bodies. But the prohibition of land ownership tends to have an impact on the use of land resources.

There are other features of the treaty—not least a requirement of free, equal access to "all areas of celestial bodies"—that further complicate matters for anyone trying to stake claims in space. And the treaty's repercussions for "space resource utilization" came long before options like space mining seemed a serious possibility.

As economist Branko Milanović has pointed out, new technologies both create new needs and help us to satisfy those needs by letting us derive more from the resources around us. This also applies to wants: The vast opportunities of space ownership, newly possible, not only include serious financial rewards for potential owners and their direct and indirect beneficiaries; they also relate to valuable incentives for the responsible stewardship of space, scientific progress, space exploration, and much more. All this helps explain some recent attempts to push at the OST's limits. Take the Artemis Accords, which have 21 countries on board to date. These aim, in NASA's words, to facilitate "exploration, science, and commercial activities for all of humanity to enjoy." The launch of these legally nonbinding accords can be seen as an alternative to addressing the OST's frustrations head on: If you can't persuade all the parties to agree to a new treaty, or even to update the old treaty's text, then the only standard legal option left is to institute a sufficiently recognized norm. And the Artemis Accords seek, in their detractors' view at least, to set a norm that gives the U.S. some headway in the valuable matter of appropriation, not least thanks to the country's strong current lead in access to the moon.

This may all seem arcane, but it's relevant to far more than the prospect of offworld mining operations and the intrinsic value of learning more about the world up there. Space offers something that we might not realize we need: a chance to sort out how property rights should work, from the basics.

Property Rights Problems

Clear and secure property rights have led to vast improvements in the standards of human welfare. But they also come with a challenge that we might call the "justified acquisition problem."

This does not merely involve the difficulties inherent in determining that something has been justly acquired. It involves the fact that almost everything on Earth has been claimed by someone at some point, but most of these things will have also passed through complex chains of ownership. Many of these chains include dubious links.

In some cases, that dubiousness will stem from insufficient information. Human record-keeping is at best fallible and at worst absent entirely. But the problem here isn't just insufficient information. Some items of property have been the subject of moral or legal dispute; some have passed through the hands of thieves. And without the justified acquisition of a thing—including its initial acquisition—can any subsequent transfer of that thing be fully justified?

Now, maybe you're able to square away these problems. Maybe you believe, for instance, that without some kind of radical property amnesty, it would be impossible to right these wrongs. And maybe you also think—for reasons of feasibility, say—that such an amnesty is simply a step too far. Even though, as a firm believer in the deep wrong of rights violations, this doesn't sit easily with you.

Indeed, the more you care about property rights, the more this problem is likely to eat away at you. If you think property rights are crucial—and particularly if you hold the hardcore view that all property rights are absolute and inviolable—then you're going to have to come up with a pretty good story as to why your property rights matter when the rights of whomever it was down the dubious chain didn't.

This takes us back to what it is that determines justified acquisition in the first place. It's important to have a solid answer here, because private property by its nature is exclusionary: The same property rights that can be seriously valuable to those who hold them can be seriously costly to those who don't. My right to this piece of land entails your obligation to respect my ownership and behave accordingly. You can no longer roam freely over it whenever you want or pick the blackberries from its shrubland without my permission.

One well-known option, at least when dealing with something that has never belonged to anyone before, is the principle of "first come, first served": Whoever gets to something first has dibs on it. This idea seems intuitively powerful. One reason the British colonizers of Australia were so clearly acting immorally when they termed the country "terra nullius"—"nobody's land"—is that this ignored the claims of the lands' existing inhabitants, whom horrifically they wrote off as "uncivilized." The 1992 Mabo v. Queensland ruling famously found in favor of those aboriginals' descendants, making "terra nullius" null, and recognizing (to some extent) pre-colonial claims.

But while it was clearly wrong for the colonizers to forcibly override the aboriginals' prior claims to the land—an override that violently violated the aboriginals' rights in ways that went far beyond grabbing their land—"first come, first served" isn't the end of the story.

This is partly because the aboriginals' ownership rights surely did not derive solely from having been there first. The land had also become their home, their livelihood; it met their needs, and enabled them to provide for themselves and their families. These people were linked to that land in ways much more complex and rich than simply having been there before anyone else.

"First come, first served" is also insufficient because rights are rarely unconditional. The shape or content of most rights will change or even cease in certain situations. If you believe punishment can be justified, for instance—and particularly if you believe that imprisonment can be justified—then you believe the right to freedom is conditional on good behavior. And as John Locke told us, while it seems wrong to prevent people from realizing their right to acquire property, it also seems wrong if the person who gets to something first precludes other people from ever being able to own such property for themselves. It also seems wrong if existing owners' wasted surplus is no longer fair game for other people who urgently need it.

A Model for Space Property Rights

This is where space comes back in: a real-world thought experiment on which principled thinking can be applied from scratch. What if we could stop celestial bodies from becoming the exclusive playgrounds of authoritarian leaders who can free ride on others' compliance with international law—or of tech bros who dominate access to the earthly resources needed to get off the ground?

Of course, if it weren't for those tech bros spending their fortunes pursuing space dreams and taking on the risks of space progress, we'd still be in the days when space exploration was a stagnant government monopoly. But does that mean they should get to claim space in perpetuity, simply because the rest of us can't compete at the moment? Yes, space is likely infinite. But until human beings learn how to travel as far as we want in practically no time at all, space land—and particularly the nearby space land that is generally most desirable in relation to its use value—is scarce.

What if we could solve the justified acquisition problem once and for all? What if space offered humanity an unrivaled, one-off, blank-slate chance to try out classical liberal ideals? Even if we can never fix the problems of the dubious chain on Earth, here's a fresh chance to get it right from the start. We need to set in place a morally justified space property rights regime that serves all of humanity. If we don't, a small set of billionaires and authoritarian leaders will likely set the rules of the game for centuries to come.

Of course, we shouldn't stop billionaires exploring space just because everyone else can't do so yet. Neither should we cut off our noses to spite our faces by preventing them from owning things in space: the knock-on benefits could be vast. But we must find a way to ensure initial ownerships aren't set in stone in an anti-competitive way that precludes the opportunities of everyone currently lacking the resources to get some skin in the space game. Surely it would've been wrong for the USSR to gain perpetual ownership of the moon simply because it landed a spacecraft there first. And surely the first person to arrive on Mars—or the country or company they represent—shouldn't get to control everyone else's access to the planet.

Here's one alternative to consider: a conditional temporary-ownership system that would enable individuals to gain property rights over plots of moonland in a market system. As I describe in a recent paper for the Adam Smith Institute, individuals could compete against each other for moonland, with basic competition consisting in the paying of "rent" for plots. The size of the plots, and the rate of "rent," would vary depending on supply and demand. Of course, it wouldn't technically be rent, since nobody legally owns the moon, and it seems best to think of it as morally "unheld," too. But the core idea is that payments are made into a fund that generally serves to enable an increasing number of individuals to compete for plots—through investment in space opportunities across Earth—which seems like a neat market mechanism.

Thanks to the inspiration of Henry George—who argued that individuals should be able to accrue economic value from what they produce, but that natural resources should be seen as a shared good—successful competitors would own in full the profit they made from the use of their moonland. And they could use this land for any morally justifiable purpose—although certain conditions apply. Following the insight of John Locke, these conditions relate particularly to the moral concerns of property spoilage and urgent human need. In recognition of this conditionality, various partial "rent" rebates would come into play.

Now, the administration of the fund and many details pertaining to its workings would need to be determined by its potential users, not least in order to confer legitimacy. It also seems most likely, for practical reasons, that the plots of moonland for which individuals would compete would have been initially acquired by, or assigned to, particular nations. But let's imagine that the directors of a company called Moon Maneuvers wanted to acquire some moonland to provide adventure holidays. If there was a piece of land available at a price they wanted to pay (taking into account the market pricing of moonland, and the potential rebates available), then they could temporarily acquire it. The money paid would go into the fund, where it would be used to increase competition for access to plots—through, for example, support for space programs and science education. And if rebates hadn't been applied to the "rent" paid, because Moon Maneuvers' use of the moonland wouldn't meet the conditions of "spoilage" and "urgent need"—through, for example, beneficial impact on food cultivation—then the extra paid would enable these conditions to be met through the fund's support for relevant causes.

The length of time Moon Maneuvers' ownership lasted—before they would have to compete against others to retain their position—would, again, depend on the market, on their use of the land, and on details determined by the system's users. But what is crucial is that the mechanism works to increase the number of individuals who are able to compete to actualize their equally held potential right to space land. This is in recognition of the way in which it seems wrong (and a massive missed opportunity) to prevent those few individuals who currently have the capacity to acquire such land from realizing their right to do so. But it also seems wrong if their doing so precludes other people from ever being able to do so themselves.

This then, alongside the system's temporary nature, addresses the "justified acquisition problem." My approach is certainly not the only way forward. But if we—as people who care about freedom, rights, and property—don't get ahead of the game, then we'll regret it. It's not just that most of us will miss out on much of the vast opportunity of space if "first come, first served" is allowed to win. We'll also lose an unrivaled opportunity to strengthen the fundaments of freedom-focused thinking, forever.