Property Rights on the Moon: Interplay Between Power and Equitability

This piece has been written by Devangi Dube, a second-year law student at Jindal Global Law School, O.P. Jindal Global University.

Credit: Josie Ford

Introduction

The Moon is the ideal object for exploration “from scratch”, being mostly an untouched surface without territorial, political, and economic boundaries. Moon Exploration is at the forefront of space activity, aiming for survival of mankind beyond Earth with the use of extra-terrestrial resources. However, despite the process of exploration now being feasible, there still remain major disagreements on how such exploration is to be carried out. This article seeks to bring forth the contradictions in the current International Outer Space Law regime in its regulation of property rights on the moon, highlighting the need for an international property-rights regime that accommodates the interests of privatisation on one hand and equitable distribution of resources of the moon on the other.

Failure of the Outer Space Treaty to Prevent Appropriation of Moon by Private Entities

Ten years following the launch of the first satellite into space, the Outer Space Treaty (“OST”), formally known as the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including Moon and Other Celestial Bodies”, came into effect on October 10, 1976[i], and became the basis of International Space Law. It was signed and ratified by all Space powers, while most of the countries joined later[ii]. Article II of the OST clarifies that the Moon and other Celestial Bodies, being components of Outer Space, are not subject to “national appropriation, by any such claim of sovereignty, occupation, or by other means”[iii]. Interestingly, this provision has been interpreted broadly by some to include private property, and narrowly by others as only prohibiting “national” appropriation[iv]. However, certain loopholes in the Treaty point towards the latter being the correct approach[v]. It has been argued that under international law principles, States are permitted to do what is not expressly forbidden; a restriction, thus, cannot be presumed. This is direct reference to the legal doctrine of “expression unius est exclusion alterius”, a rule of interpretation which presumes that things not mentioned in the statute are consciously excluded[vi]. Consequently, since Article II of the OST mentions national ownership without any explicit ban on private property claims, it is arguable for individuals, corporations, non-governmental entities, etc., to exploit the gap for appropriating space objects.

Additionally, there is no explicit ban on nations to recognise such claims in good faith.[vii] Consequently, several private businesses have ventured into commercialisation of space, thereby largely subordinating modern astronautics to the interests of commerce[viii]. Dennis M. Hope’s company, the Lunar Embassy, is the sole company in the world possessing a legal basis and copyright for the sale of land on the Moon[ix]. Having sold more than 611 million acres of land on the moon and other celestial bodies, the company now has official representations in 35 countries.[x] The US Government, with the passage of the Commercial Space Launch Competitiveness Act in 2015, explicitly permitted US citizens to engage in exploration and exploitation of space resources[xi]. This expressly codified the rights of the private sector that were only implicit in the OST.[xii] Following this, Luxembourg became the first European country to regulate ownership of space resources by commercial companies, providing legal sanction for projects such as space mining[xiii]. Companies like Deep Space Industries, Planetary Resources, and Japanese iSpace have signed accords with Luxembourg[xiv]. Other private companies that subordinate modern astronautics to commercial interests include Elon Musk’s SpaceX, Amazon, Virgin Galactic, Orbital ATK, and Rocket Lab[xv].

Regulation of Privatisation of the Moon: The OST vs Moon Agreement

At this juncture, it is worth calling attention to certain provisions of the Moon Agreement of 1979. Article XI of the Agreement states that the surface, subsurface, or any part of natural resource on the moon cannot become the property of any State, intergovernmental, non-governmental, national organisation or any natural person[xvi]. Complementing its ethos, Article III declares that the “placement of personnel, space vehicles, equipment facilities, stations and installations, shall not create a right of ownership”[xvii]. These two provisions have implicit in them the principle of res communis which makes Moon the common heritage of mankind (CHM). The CHM principle entails belief in the potential for reaching a distribution of resources which is “equitable”, based on justice and fairness[xviii]. Thus, resources of the moon have to fulfil community purposes, as opposed to satisfying individual or private uses. This doctrine resounds most prominently when defining property rights of space resources.

While the OST rejects property claims by States, the Moon Agreement attempts to extend this prohibition to private entities as well[xix]. While the Moon Agreement allows for collection and possession of samples from the moon for scientific investigation, it yet again does not allow exclusive ownership, keeping such samples at the disposal of other States for increased scientific cooperation[xx]. Similarly, Article IV, which is supplementary to Articles I and II of the OST, states that all States are to exercise this common right of exploration without discrimination of any kind, rooted in equality and carried out in accordance with international law[xxi]. Hence, such exploration shall be carried out for the benefit of and in the interests of all states, regardless of their economic or scientific development[xxii]. In this manner, developing countries can only be exploited under an international regime rather than facing unilateral exploitation[xxiii]. As such, the US and Luxembourg legislative Acts discussed above are arguably violative of the principle of res communis. Although signified by a meagre 11 states, the very existence of the Moon Agreement to some extent undermines the notion that the OST outlaws private property, because if it did there would be no need for an express ban by the former[xxiv]. “All that is not prohibited is allowed” works against the spirit of the Moon Agreement, turning it into a blank declaration in reality[xxv].

The Moon Agreement as a Barrier to Moon Exploration and a Case for Resource Exploitation

The Moon Agreement, being rooted in the principle of res communis remains a potential disincentive to economic development, underscoring the case for the US to repudiate it[xxvi]. To make matters worse, the CHM principle has not only made the Moon Agreement’s value to countries like the US questionable, but also cast doubt on its meaning as a whole[xxvii]. This article thus argues that the inadequate acceptance of the Moon Agreement (with mere 11 signatories) may be viewed today as an obstacle to Moon exploration instead of facilitating it. Hence, urgent intervention to shape the legal system on outer space in a manner that allows the Agreement to realise its true potential, is required. Practical, economic development of space by treating it as a frontier in its own right has not yet materialised. Nevertheless, the promise is as great as ever, provided that the current legal framework can be shifted towards regarding space not only as mere site of human exploration, but one of human enterprise[xxviii].

Proponents of private property claims argue trends in the purchase of plots on the lunar surface have the potential of being advantageous in the near future. They extend their support to projects like the Space Settlement Initiative which believes that space settlement will prove to be beneficial for humanity, simultaneously opening a grand new frontier[xxix]. To substantiate, although extracting rocks is not profitable in itself, the ability to sell legitimate, recognised land of rocks, would produce revenue worth billions of dollars[xxx]. These profits could in turn be used for investing in space settlement working as powerful incentives, thereby energising and re-energising society[xxxi]. Unfortunately, despite substantial technological progress, space settlement has been hampered by an ambiguous and contradictory legal regime with respect to property rights in space. Without legally recognised property rights (recognised as pillars of prosperity in the modern world), including the rights to buy, own, and sell, it is difficult to raise capital and regulate economic activity effectively[xxxii]. Therefore, it is argued that an alternative property-rights regime would be most successful if it conforms with the OST.

Opponents of private property like Leslie I. Tennen, argue that the national governments would only recognise claims of its own legal persons, thereby constituting a de facto exclusion of other states and inevitable national appropriation[xxxiii]. However, if the governments recognised claims by any individual or corporation regardless of nationality, such an opposition would fall flat on its face[xxxiv]. Following this logic, propositions like the Space Settlement Prize Act call for an international regime where privately held space settlements will not be under sovereign jurisdiction of any terrestrial nation[xxxv]. This would offer required assurance that private property rights are available to be secured by those who undertake high costs, while simultaneously setting the bar high enough to only permit serious property claims[xxxvi]. This paves the way to allow space to transcend beyond a mere scientific preserve, opening it up for settlement.

Caution Against Private Property on the Moon on Account of Equity

Nonetheless, as appealing as the proposition might sound, it also opens us up to certain dangers and digressions. It might lead to a new phase of space race, providing powerful winners with vital superiority in getting the most obtainable resources on the Moon, and suppression of probable rivals. Thus, there would exist a clear violation of rights of those who are unable to invest substantially in the extraction of resources[xxxvii]. It is in this context that desirability and exigency of the res communis principle is highlighted. Upon decolonisation, the enormous disparities in development, power, and wealth among the states became apparent. The right to benefit from the common heritage of mankind is the result of the perception of the newly formed states that formal equality alone will not bring about substantial change, thereby emphasising the need for material equality[xxxviii]. Thus, it imposes certain obligations on the state towards mankind. As long as the state is the primary actor, the new ones will demand an equal footing in the world community, which cannot be realised if the international law remains unaltered and unattuned to the disparities present. CHM then stands to meet the demands of an international law tailored to the interests of the modern, expanded world community[xxxix].

Achieving commercial development while assuring equitability of the actors to secure their right to benefit from the common heritage of mankind will require an attempt from our side to reach a middle ground. One creative solution for the same is transferring outer space completely to the jurisdiction of international space legislation, establishing a supranational Committee operating within the United Nations mandate. Essentially, the feasibility of eliminating national laws governing space activities for the sake of uniformity is worth evaluating. The committee can give out licenses authorising space activities to States, individuals, corporations, or organisations. Such licenses will avoid blank declarations of intentions unsupported by real execution plans. Another essential pre-requisite will be grant of a limited territory based on the set task of space activity. These mechanisms disabling absolute property rights to licenses for temporary use will help bypass national appropriation[xl]. Alternatively, following the need for some appropriation, recognition of partial land claims (as opposed to complete ownership) can also be allowed through concessions, prospecting rights to carry mining within a given area, and certain contractual rights[xli].

Conclusion

To reiterate, if the Moon Agreement discarding private property is upheld, concern about discouragement of commercial development is warranted. On the other hand, if it is set aside, justified backlash from the Third World countries is inevitable. The unfolding race for extraction, investigation, and development of resources of the Moon has underlined not only hopes for future profits but also an absence of international laws able to regulate sharing of the “space pie”. This lack of clear, non-contradictory laws consequently establishes the “rule of the most powerful”—the most advanced and contestant of the race taking all decisions. To simultaneously achieve an equitable distribution and scientific development through enterprise, a universal, comprehensive convention on outer space should be introduced with the aim of solving the existing issues.

[i] Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 (Adopted 27 January 1967, came into force 10 October 1967) 610 UNTS 205 (The Outer Space Treaty). [ii] Sergey Krichevsky & Alexander Bagrov, ‘Moon Exploration: Legal Aspects’ (2019) 4 Advanced Space Law 34, 38. [iii] (n 1) art 2. [iv] Amanya Shree Gangawat, ‘Re-exploring Terra Nullius and Property Rights in Space: Could a Lunar Settlement Claim the Lunar Estate?’ (2020) 6 Advanced Space Law 13. [v]Ibid 18. [vi] Ibid. [vii] Ibid. [viii] Oleksandr Svetlichnyj & Diana Levchenko, ‘Commercialisation of Space Activities: Correlation of Private and Public Interest in the Pursuit of Outer Space Exploration’ (2019) 4 Advanced Space Law 80 [ix] Ibid 82. [x] Ibid. [xi] U.S. Commercial Space Launch Competitiveness Act, 42 U.S.C. 18322 (2015). [xii] Oleksandr Svetlichnyj & Diana Levchenko (n 8) 82. [xiii] Ibid 86. [xiv] Ibid. [xv] Oleksandr Svetlichnyj & Diana Levchenko (n 8). [xvi] The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 (adopted 18 December 1979, came into force 11 July 1984) 1363 UNTS 22 (The Moon Agreement) art 11. [xvii] Ibid art. 3. [xviii] James R. Wilson, ‘REGULATION OF THE OUTER SPACE ENVIRONMENT THROUGH INTERNATIONAL ACCORD: THE 1979 MOON TREATY’ (1992) 2 Fordham Environmental Law Review 173, 174-177. [xix] Amanya Shree Gangawat (n 4) 15. [xx] E. Van Bogaert, ‘THE MOON TREATY: ACHIEVEMENTS AND FUTURE PROBLEMS’ (1981) 34 Studia Diplomatica 655, 665. [xxi] (n 9) art. 4. [xxii] E. Van Bogaert (n 21) 664. [xxiii] E. Van Bogaert (n 21). [xxiv] Ibid 664. [xxv] Sergey Krichevsky & Alexander Bagrov (n 2) 40. [xxvi] Rand Simberg, ‘Property Rights in Space’ (2012) 37 The New Atlantis 20, 23. [xxvii] Christopher C. Joyner, ‘Legal Implications of the Concept of the Common Heritage of Mankind’ (1986) 35 The International and Comparative Law Quaterly190. [xxviii] Rand Simberg (n 17) 20. [xxix] Amanya Shree Gangawat (n 4) 16. [xxx] Ibid. [xxxi] Ibid. [xxxii] Rand Simberg (n 17) 21. [xxxiii] Ibid 25. [xxxiv] Ibid. [xxxv] Ibid 26. [xxxvi] Ibid. [xxxvii] Sergey Krichevsky & Alexander Bagrov (n 2) 36. [xxxviii] Marjoleine Y. & A. Zieck, ‘The Concept of “Generations” of Human Rights and the Right to Benefit from the Common Heritage of Mankind with Reference to Extraterrestrial Realms’ (1992) 25 Law and Politics in Africa, Asia, and Latin America 161, 162. [xxxix] Ibid 163. [xl] Sergey Krichevsky & Alexander Bagrov (n 2) 41-43. [xli] Amanya Shree Gangawat (n 4) 20.