UPDATE Jan 2022: I’ve noticed this post getting quite a lot of traffic lately. Sometimes I talk about space law here at my science fiction blog, but I do so far more regularly at my space law blog. In fact, recently I ran a series about private property in outer space that may be of interest to you as a visitor to this particular page. You may find the first in the series here.
The Original Post
Over the years I’ve heard folks in the science fiction community say that the outer space treaties prohibit private property. This is not correct.
The quickest way to tell that this isn’t true is to note that Earth orbit is full of satellites owned by private entities. Those satellites belong to their owners.
Often, however, what folks really mean is that private entities like you, me, or the nearest asteroid mining conglomerate can’t own what we’ve mined, and we can’t own land on the moon.
The source of this belief is Article II of the Outer Space Treaty (OST), which says:
Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
Note that the treaty prohibits national appropriation. “National” appropriation refers to countries. Thus, although the United States put a flag on the Moon, the Moon is not U.S. territory. Even though the outer space treaties are, in fact, silent with respect to private appropriation, Article VIII of the OST gives us one glimpse into the thinking of the people who wrote and signed it. It says:
Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.
In other words, just because I put a satellite into space, that doesn’t mean it stops being mine. If I build an object on the Moon it’s mine. No, the real question over private property applies to two more difficult items: mined resources (“extracted resources” as they like to say) and land.
Mining: To the extent the treaty was unclear about those platinum group minerals you just spent your life acquiring, the U.S. Congress cleared the matter up for Americans back in 2015, by recognizing rights in “commercial recovery of space resources.”
Land: Some people think that because the treaty prohibits national appropriation, and because another part of the treaty tells countries to make sure their citizens abide by the treaty, that private persons can’t appropriate land. I admit I don’t understand this argument.
I think it means only that private persons can’t engage in national appropriation. I think that because that’s what it says. The end result here is that state-owned corporations might not be able to appropriate land, but the purely private could.
I came across something recently by an early space law pioneer which supports my view, so I thought I’d share it here:
In INTERPRETING ARTICLE II OF THE OUTER SPACE TREATY he noted that private appropriation appears acceptable under the treaty.
…the Treaty in its present form appears to contain no prohibition regarding individual appropriation or acquisition by a private association or an international organization, even if other than the United Nations. Thus, at present, an individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space, including the moon and other celestial bodies.
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