Brave New Worlds – Who Owns Outer Space?
By Barbara Atkinson, staff writer – December 18, 2012
While our civilization has developed the technology to explore the outer reaches of space, our legal framework for space exploration, space enterprise and space economics has yet to catch up.
Progress continues to be made in space technology, from the now long-ago landing on the Moon in 1969, to the planned SpaceX Falcon Heavy launcher, which would allow routine delivery of goods to low-Earth orbit and beyond. But even with the most recent technical innovations, there is still no clearly defined legal regime, either within current U.S. law or internationally, under which to recognize property rights in space.
This summer, the Planetary and Terrestrial Mining Sciences Symposium, in collaboration with Colorado School of Mines and the Lunar and Planetary Institute, held a conference known as the Space Resources Roundtable. The goal of the conference was to address the approach to what scientists call “off-Earth” resources, including what was to be determined regarding how to agree upon the property and mineral rights to the Earth’s moon and asteroids. How will various companies approach private development, and what legal tangles lie ahead?
Though their efforts are not widely publicized, numerous private companies are currently working on the technology to mine the Earth’s moon, various asteroids and other mineral-rich celestial bodies. Naveen Jain of Microsoft founded Moon Express, which plans to use robots for Moon mining operations as early as 2013. The Shackleton Energy Company, based in Texas, hopes to mine — and use the ice found in – the moon’s Shackleton Crater as a major fuel source for planetary missions. Several Google executives, along with Virgin’s founder, Richard Branson, and filmmaker James Cameron, recently formed Planetary Resources, a company with the express goal of mining asteroids. Asteroids are rich with valuable elements, including iridium, neodymium, platinum, palladium, scandium, and yttrium – minerals that command prices high enough to justify the exorbitant costs to get to them, mine them, and return them to Earth.  And with mining plans will come mining claims.
International space law, to the extent that there is any, was shaped during the Cold War, when space was considered a goal to reach rather than a potential resource to mine for capitalistic gain.
In 1967, the international “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies” was signed by the United States, the United Kingdom, and the Soviet Union. It was entered into force in October, 1967, and currently has 100 countries as parties, with another 26 signed without completed ratification.  The Treaty was developed on the principle that outer space must stay free for exploration without any “national appropriation.” 
Though some parties pushed for space activities to be the sole preserve of governments, Article VI permitted private activities in space under government supervision, effectively allowing for the development of telecommunications and other satellites launched by non-government entities. The treaty was negotiated and agreed upon long before any concept of economic space development seemed even remotely feasible. Later space treaties did nothing to clarify the issue: The 1968 Rescue Agreement addresses issues regarding rescue and return , while the 1972 Liability Convention establishes the steps needed to properly adjudicate third-party harm claims. 
In 1979, there was a push for a new treaty to address the growing interest in economic space exploration: the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.”  The Moon Treaty would turn the jurisdiction of “all celestial bodies” and their orbits to the international community. However, the treaty has yet to be ratified by any space exploring nation. 
How will off-Earth property rights be treated under the 1967 Outer Space Treaty? The issue has yet to be put to any legal test. The space-law scholar Stephen Gorove argued in 1969 that Outer Space Treaty, as it stood, contained no apparent prohibition to individual appropriation or acquisition, meaning that anyone — or any organization — could appropriate the moon and other celestial bodies. 
Gregory Nemitz, the CEO of Orbital Development, based in Idaho, sued NASA and the U.S. government over what he claimed was a violation of his property rights to asteroid 433 Eros. Nemitz claimed the asteroid as his almost one year before NASA landed the spacecraft NEAR Shoemaker on 433 Eros, in February 2001. 
Nemitz invoiced NASA for parking and storage fees; he charged them the then-market rate of twenty cents per year, allowing the NEAR Shoemaker spacecraft to stay on “his” property for an estimated one hundred years. 
As Nemitz told Space.com, “Everybody knows that possession is nine-tenths of ownership.” His goal, he said, was to push the government to make an official determination about space property rights. But both the federal and appeals courts declined to examine his claim, and granted the state’s motion to dismiss “as a matter of law for lack of a cognizable legal theory.” 
How someone can make an officially recognized claim on a space resource had yet to be successfully adjudicated. 
“Today it is probably best to just carry forward with the engineering projects aiming to extract and use space resources and not worry too much about property rights,” Nemitz told Space.com. “Property rights are officially recognized primarily to protect property from theft and vandalism. Space is vast and there aren’t any neighbors vying to steal your property, so don’t worry too much about it.”  But what will happen when someone from Earth shows up (or even, let’s suppose, from elsewhere) and becomes your neighbor? Is there a clear legal format with which to recognize space property rights?
Space-law analyst, Leslie I. Tennen, argued in 2010 in the Nebraska Law Review that that the decision by a state to recognize property claims “would constitute a de facto exclusion of other states and their nationals, and thereby constitute a form of national appropriation.”  As such, the recognition of space property rights could in theory lead to an international conflict, violating the spirit of the Outer Space Treaty.
Could conditions be set forth that did not entangle the private or corporate property owners’ government, conditions which meant ownership status was not a de facto national appropriation? This is the crux of the legislation proposed by The Space Settlement Institute. The New York-based advocacy group is pushing the Space Settlement Prize Act, which would allow land ownership claims “for any private entity which has, in fact, established a permanently inhabited settlement on the Moon, Mars, or an asteroid, with regular transportation between the settlement and the Earth open to any paying passenger.” The SSP Act defines the term “private entity” to mean “a company, a consortium of companies, and/or one or more individuals that are not controlled by any sovereign state or government.” 
Some lawmakers look to deep seabed mining and applicable maritime law for precedence, but definitive moves have yet to be made. While the pace of commercialization is clearly accelerating, with multiple firms planning operations in the near future, the issue will be forced soon enough.