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Is now the time to start working on space property rights?

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.”

35 comments to Is now the time to start working on space property rights?

  • You’d be surprised — or maybe not — by how many people insist to me that the U.S. “owns” the Moon.

  • amightywind

    Property rights on the moon start by being able to defend them with force of arms, like any border. It is the only thing that will impress the Russians and Chinese. Yes, the US owns the moon.

    • Mader Levap

      Now THAT’S new level of reality detachment.

    • Explorer08

      Amightwind’s reply is like something out of the comic strip, Bizarro.

    • common sense

      It’s a medication thing. Before or after breakfast and posting here.

      I can see a huge battle – in your mind – on the Moon to defend some dirt.
      It’s mine.
      No mine.
      Saw it first.
      Did not.
      Did so.

      Should just take your toy soldiers and have at it.

      Oh well.

    • Hiram

      “The US used to own the Moon.” from Andrew Swallow

      “Yes, the US owns the moon.” from almightywind

      No declaration was ever filed that we “owned” the Moon, nor were any words ever spoken to that effect when we went there. Geopolitically no one believed that we owned it. So we certainly didn’t abandon any claim by not going back. The Apollo 11 plaque that was left behind states that “We came in peace for all mankind.” So you have to interpret that as meaning that it was all about mankind. That was a declaration that the U.S. didn’t want to claim it. No surprise. If we claimed it, we’d be obligated to defend it.

      This really isn’t hard, guys.

      • Andrew Swallow

        The Apollo 11 astronauts put up and did not take down a US flag. Think what that means.

        • Coastal Ron

          Andrew Swallow said:

          The Apollo 11 astronauts put up and did not take down a US flag. Think what that means.

          It means, amongst all the other stuff we left on the Moon, there are a bunch a flags. So from that standpoint it shows from what country all the trash came from.

          And just to provide a little more clarity on this, here is a Wikipedia entry on it, which in part states:

          In fact, the United States Congress passed a bill in November 1969, signed into law by President Richard M. Nixon, stating “the flag of the United States, and no other flag, shall be implanted or otherwise placed on the surface of the moon, or on the surface of any planet, by members of the crew of any spacecraft … as part of any mission … the funds for which are provided entirely by the Government of the United States. … this act is intended as a symbolic gesture of national pride in achievement and is not to be construed as a declaration of national appropriation by claim of sovereignty.”

          Is that enough clarity for you?

          • Andrew Swallow

            That comes down to does the rest of the world believe Tricky Dicky?

            • Coastal Ron

              Andrew Swallow said:

              That comes down to does the rest of the world believe Tricky Dicky?

              No. It comes down to whether the rest of the world believes in how a democracy works. And whether you do too.

              If you don’t believe in the laws of the United States, as passed in their constitutionally defined ways, then why should anyone?

              You really need to think this through…

              • Andrew Swallow

                I have thought this through. US laws do not apply to non-Americans outside the USA.

                So do we believe Tricky Dicky?

              • Coastal Ron

                Andrew Swallow said:

                I have thought this through. US laws do not apply to non-Americans outside the USA.

                This statement is disconnected from the topic at hand, since the U.S. has said they don’t have any claims to the Moon. Are you saying that other countries will pretend like we DO have a claim for the Moon? Weird.

                So do we believe Tricky Dicky?

                I guess you don’t understand how your government works. Congress writes the laws, the President just approves them (or not, but in this case the President did approve it).

                More importantly – do you believe laws that Congress writes have the force of law after being signed by the President?

        • Hiram

          “The Apollo 11 astronauts put up and did not take down a US flag. Think what that means.”

          The Russians put a flag on the ocean floor at the North Pole. So, um, they own it? Maybe it’s a symbolic claim, but no one takes it as a real one. I’m thinking about what it means … are you?

          The U.S. flag says “we were here”. It doesn’t say anything else. It doesn’t even pretend to say that we own it. If it mean “we own it”, you can bet that the Chinese would head up there specifically to bring it back.

          • common sense

            I don’t think the Chinese care one way or the other. China’s space program is for China’s internal consumption. Not to enter a competition with the US. Not now anyway. Actually I believe/speculate they would like to be partners with the US. Now that Wolf is going to retire to his lair it might even happen. Who knows…

  • Andrew Swallow

    Any such US law needs clauses applying ‘Common Law’ to US controlled parts of the Moon and banning felonies. They will help the enforcement of property rights.

  • Vladislaw

    I believe the safer bet would be to start with space rocks. When does a company actually own a rock and list it as an asset for tax purposes. A good start would be for a company to say “hey uncle sugar, give us ownership and you can lay a 20% tax on revenues from said rock” Uncle sugar does love his taxes to put em out there on the table.

  • John Malkin

    Companies aren’t going to invest much time and money into interplanetary ventures without knowing the return on investment (ROI). The ownership of the “ground” under structures needs to be determine. It could be a long term lease. Also resources obtained should have ownership. Since most resources won’t be returned, it needs to be permanent ownership. This needs to be an international agreement with the economic leaders or at lease space faring countries. The rules for conservation and protection of scientifically important places need to be determined as well. I don’t think it should be as restrictive as Antarctica.

    Until this is clear, it will add risk to any commercial venture on other planetary bodies (asteroids, moons, planets and comets) which would most likely decrease venture capital.

    • Vladislaw

      John Malkin wrote:

      “The ownership of the “ground” under structures needs to be determine. It could be a long term lease”

      If they lease the ground, build a facility, and start leaving human’s natural leavings and all the modern technology and the better living through modern chemistry remains, who is responsible for that pile of mess once the lease is up?

  • Coastal Ron

    With all consumption being Earth-centric today, and for the foreseeable future, it shouldn’t be that hard to come up with some sort of groundwork for determining who gets rights to what.

    Certainly I wouldn’t want to see an entity (i.e. person, company, country, etc.) laying claim to more acreage than they can be actively using, so some sort of organization should be created to be the central repository of claims and to be the first step in abrogating disputes. In modern times the ICANN organization was created to manage the internet name “land rush”, so there is precedent, and at this point there is unlikely to be any sort of rush out into space since there is no economic value there yet – only political value – so there shouldn’t be that much to manage.

    Plus, for as long as consumption continues to be Earth-centric, it should be easy to implement a tax system. For those countries that want to encourage space industries to locate within their borders, they would probably have the least amount of taxes, which is not unlike what happens today (just ask Apple about their operations in Ireland). There is plenty of current examples that can be referred to on this.

    What I think the sticking point will be is that doing anything in space is both expensive and requires a very high degree of technological sophistication, which leaves out most countries around the world. They won’t see any advantage of giving up their supposed claims to the heavens, even though they’ll never be able to exercise any of their claims anyways – or at least not until the space savvy nations open up the frontiers and make easy enough for anyone to go there.

    One other factor to consider. The Pandora’s box that has not yet been opened is when countries can no longer control who does what in space. That will be a good thing (I hope), but it is also something that countries will weigh when they are considering ownership rules.

    • Vladislaw

      Remember that the tax man will ALWAYS be the first one to knock on your door. So who gets to tax who, what, where and when will be at the top of the agenda. Personally I do not want it to be in the hands of the U.N.

      • Coastal Ron

        Vladislaw said:

        Personally I do not want it to be in the hands of the U.N.

        As far as I know they don’t tax anything today, so that would have to be a new responsibility they are voted. But that is VERY unlikely to happen, since no country wants to give up their own revenue streams.

        • Vladislaw

          Should have seperated that, it was two thoughts.

          My point was that taxes would likely be one of the top factors on the property rights issue.

          My thoughts on the U.N. are more, my hope is they are not the place where it gets decided. There are only a few major players in space and I would not like to see 140+ non space country’s deciding it.

  • Bennett In Vermont

    CR wrote “The Pandora’s box that has not yet been opened is when countries can no longer control who does what in space.”

    I’ve been thinking about this since yesterday, and the key to Pandora’s Box is when an entity not explicitly governmental, or under explicit contract to a government, is out there, and decides to do something.

    At that point, doesn’t the time-honored adage “possession is 9/10th of the law” come into play?

    What if the player launches from Texas, but returns assets to international waters?

    I’m curious what more learned parties think.

    • Andrew Swallow

      At that point, doesn’t the time-honored adage “possession is 9/10th of the law” come into play?

      Answer = Now. The USA is ignoring the ‘Moon Treaty’.

    • Coastal Ron

      Bennett In Vermont said:

      At that point, doesn’t the time-honored adage “possession is 9/10th of the law” come into play?

      What if the player launches from Texas, but returns assets to international waters?

      I don’t really see this as the “Pandora’s Box” that I was talking about, but it is still something that needs to be dealt with.

      Overall I think the current rules of commerce will apply. The countries where the material from space finally end up at will deal with them the same way they deal with any imports.

      The Pandora’s Box I was referencing is when the entities in space no longer respond to control from entities on Earth. We’re a ways away from that, but enough fiction stories have been written about this situation that it’s easy to understand all the ways governments can lose control of their investments.

  • Fred Willett

    I would urge some sort of land rights system for outer space to be established ASAP.
    Why?
    It looks like launch prices are on the verge of big falls.
    Look to the SpaceX CRS3 flight (currently net 3/3). If spaceX pulls off a landing back on the cape with their first stage well, Musk is talking of 30% off for a pre-loved first stage, and Shotwell has mentioned a price of $5-7M for a fully reusable launch.
    If these prices come to pass (and Musk’s predictions have a nasty habit of turning out to be true) then people/companies wandering around on the lunar surface picking up rocks and expecting to own them could be closer than you think.
    In an OT aside congrats are due to ULA for finding a way to compete with SpaceX’s lower prices. They got the Air Force to sign up for a bulk buy of 36 Atlas and Delta cores. That locks in ULA as a monopoly till well into 2018, and locks SpaceX out.
    Well done guys.

    • Bennett In Vermont

      Yeah, can’t wait to see if CRS3 rolls out with landing legs attached. If it does, and SpaceX is able to perform a hover maneuver a couple of meters from the ocean surface (a few miles off the coast), the other launch providers will see their doom writ large.

  • Did anyone actually RTFA?

    This topic is not about owning the Moon or owning plots on the Moon.

    • Andrew Swallow

      Yes they did. Ownership is the prime property right.

      That ownership is what Bigelow etc. want are clear by this statement.

      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.”

      They want ownership of the resources extracted. The “without interference” bit means they want legal control of an area of land similar to that of ownership. If they cannot have full ownership of the area they may settle for being made Lord of the Manor.

      • Bennett In Vermont

        Thanks for the concise response to the anonymous nobody.

      • Did anyone actually RTFA?

        “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. It’s the rights sought by Bigelow: to extract, use and profit from extraterrestrial resources without interference.” emphasis added

      • Did anyone actually RTFA?

        Pursuing mining rights in a commercial non-interference zone, whether on the seafloor or on the Moon, is not anything like owning a plot of land.

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