Given the current range of space policy issues under discussion and debate, the concept of space property rights can seem a little, well, out there. Lunar bases and asteroid prospecting are still likely years in the future: can’t this issue wait? Not in the eyes of some legal experts and space advocates.
In an op-ed in this week’s Space News, Berin Szoka and Jim Dunstan argue that the US should take steps now to address the issue of space property rights, particularly regarding resources extracted from the Moon or other celestial bodies. They cite in particular Bigelow Aerospace’s interest in establishing a lunar base and utilizing lunar resources. “Fortunately, what’s needed to drive private investment isn’t the right to own a plot of land on the Moon or resell it to raise capital,” Szoka and Dunstan write. “It’s the rights sought by Bigelow: to extract, use and profit from extraterrestrial resources without interference.”
The approach they seek is not to go through a body like the UN or engage in protracted international negotiations, but instead to get support from the US government, in particular the FAA’s Office of Commercial Space Transportation (FAA/AST), to recognize the ownership by Bigelow (or other US companies) of the resources they extract, and to bar interference by US companies in those operations. They chose FAA/AST in part because their launch licensing process includes an interagency “payload review” that ensures that launches and their payloads comply with treaties and related international obligations. That process could become, they argue, a catalyst for a more permanent solution.
This op-ed was a response to one in Space News last month by lawyer Michael Listner, who argued any discussion of a space property rights regime was premature. “The current legal and policy environment is not ready for a regime that would unilaterally grant private property rights in outer space, and any attempt by the United States at this juncture to create such an independent regime for its citizens would be opposed by other nations and would result in significant geopolitical backlash,” he wrote in early December.
This topic came up at last month’s meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) in Washington, just days after Listner’s original op-ed. “We want to reaffirm to the FAA that what we are looking for is confirmation that a company that invests in extraction of resources has ability to profit from them,” Bigelow’s Mike Gold, who is also chairman of COMSTAC, said during a meeting of the committee’s business and legal working group on December 10 as they crafted a recommendation calling for such an approach.
“We want property rights recognized, but I don’t think we’re interested in a very extensive regulatory regime,” said Paul Stimers of K&L Gates, who representing Planetary Resources at last month’s COMSTAC meeting. “We do need to provide that certainty to investors, to the people who are preparing to make a significant commitment to this effort, that they will be able to enjoy the fruits of their labor.”