Space property: who owns it?

Monday 1st August 2011
Submitted by Louise Ridley

This August, a mission to the Moon will set off – by balloon. A team of Romanian space enthusiasts plans to lift a three-stage rocket to 18km (11 miles) off the ground before it fires, blasting an unmanned spacecraft towards the lunar surface in a bid to win the Google Lunar X Prize. And they’re not alone. Worldwide, 25 teams are registered in this competition to be the first to send a craft to the Moon to send back images and other data.

Amateur clubs, university departments and multi-million pound companies have all signed up to take part in the Lunar X Prize, hoping to claim a share of the $30 million prize fund. But ultimately, their goal is to check out the resources on the Moon; a goal that would pave the way for those resources to be exploited.

Official involvement

Governments are joining in too. China’s Chang’e-3 rover will touch down in the Bay of Rainbows in 2013, in a likely neck-and-neck race with India’s Chandrayaan-2 rover. As for the 1960s Moon race rivals, the US is dispatching a lunar orbiter in 2013 and Russia is assisting India with a lunar landing. Next year it will send its own lander too. The European Space Agency is also planning on sending its own lunar lander to the Moon’s South Pole in 2020.

So the second Moon race is under way. But this time, resources are the reward: reaching them, claiming them and making money from them. There’s only one problem: right now, no one is sure if it’s legally possible to own anything in space.

Stake your claim

Lawyers have been debating the concept of space property ownership for 40 years. But now, as new technology means that exploiting the Solar System’s resources is becoming a distinct possibility, this once purely academic issue begins to have real-world implications.

“If you were writing a space law textbook it’d have 20 pages of facts and 180 pages of question marks,” says Chris Newman, senior law lecturer at Sunderland University. “So many issues haven’t even been considered – it’s like the internet 25 years ago. That’s bound to change however, because commercial companies entering space will require a legal framework.”

What framework there is today comes mainly from the Outer Space Treaty drawn up by the United Nations in 1967. “It’s the Magna Carta of space, from which all future laws are likely to develop,” says Newman. Negotiated during the race to the Moon, the Treaty headed off territorial disputes by barring outer space and celestial bodies from all ‘national appropriation’. But, reflecting its time, no mention was made of individuals or private companies.

This loophole permits private property in space: so goes the argument of US entrepreneur Dennis Hope. He filed a claim for the entire Solar System in 1980, going on to earn millions by selling lots on the Moon, Mars and Venus online. Hope’s claim is contested by many, however, including businessman Greg Nimitz, who asserted ownership of asteroid 433 Eros in advance of a NASA probe landing on it in 2001. “Individuals have the inherent right to claim un-owned things, without the interference of governments,” says Nimitz.

“Ownership is part of human nature. Even more, it’s part of life; even some birds want to own coloured and glittering pebbles,” agrees space-law specialist Virgiliu Pop, author of Unreal Estate and Who Owns the Moon? “But claiming doesn’t mean owning: I can claim to be Angelina Jolie’s boyfriend. A claim is just that, nothing more. Registering the claim does nothing more than certify it being made.”

In 2002, Romanian-born Pop claimed ownership of the Sun with an online register, jokingly threatening to bill Hope, Nimitz and other extraterrestrial property ‘owners’ for using his sunlight.

Typically, to legally own something, simply expressing the intention to own it, or ‘animus’, is not enough; ‘corpus’, or actual possession, is also required. It’s where the phrase ‘possession is nine tenths of the law’ comes from. “Land a probe there, with the intention to claim property, and one has both,” says Pop. Here on Earth, the idea of placing some of your stuff over what you want to claim has already proved its worth. In 1989 a remote-controlled robot established a salvage claim in international waters on behalf of a US firm. There was no flag-planting and no human presence on the ocean floor was required, the District Court in Virginia ruled.

Your own acre

Hawaii-based publisher Steve Durst would like to do something similar in space. Durst is marshalling Silicon Valley tycoons to back a private Moon lander called the International Lunar Observatory (ILO). Its target will be the lunar south pole and its aim is to earn revenue from science observations and communications relays for other landers. “The ILO will also advance the cause of multi-world property rights,” says Durst. “Its four landing legs will have people’s initials etched onto their bases, so that each person can claim a lunar acre. We’re still deciding how many initials to include – one set per leg for simplicity, or divide each leg into quadrants, or even split them 360 ways. We chose acres as our unit because there are about 10 million acres on the Moon, not counting crater slopes – enough, theoretically, for everyone to get their own.”

Durst aims to kick-start debate. Many in the emerging commercial spaceflight community believe private property rights are essential for space development. “Investors want to know they won’t be kicked off something they invest in,” says Brad Blair of the Space Studies Institute, a group researching space colonisation techniques with a base in Mojave, California.

While the deep-sea salvage claim here on Earth appears to show that possession will be sufficient, we’re still to discover exactly what will happen when someone lands a craft on a celestial body with the intention of claiming it, or at least part of it. There are some who believe that regardless of what’s happened on Earth, you simply can’t own something in space. “For us it is clear that private property rights over parts of outer space are not permitted,” says Tanja Masson-Zwaan, President of the International Institute of Space Law. “There is no consensus on property rights in space, as there will always be people who continue to challenge what the law says.”

Right now, the only private individual with undisputed lunar property is the UK-born videogame developer and space tourist Richard Garriott. He bought Russia’s Lunokhod-2 rover at auction in 1993. The Outer Space Treaty specifies that man-made objects retain ownership status and, as Garriott wrote last year: “At the least I might be able to make some claim to the land beneath it, if not even more territory.”

Off-world ownership

In 1979, the UN passed the Moon Treaty, which closed all loopholes in the Outer Space Treaty by banning private property claims altogether. But this was a step too far for most nations. “None of the space-going powers ratified this treaty and few other countries did either. It’s basically ignored today,” says Newman.

But, there’s one fundamental question: is there anything worth owning in space anyway? One space resource already contributes billions to the terrestrial economy: geostationary orbit. It’s the point in space directly above the equator where a satellite orbits at the same rate as the Earth turns, so it appears fixed in one position.

It allows a fixed antenna to maintain a link with a satellite. Access to this highly sought after bit of space is regulated by the International Telecommunication Union (ITU). No one owns an area of space, they’re simply assigned separate 0.1° ‘slots’ (about 70km wide). The system has worked well for decades, illustrating one point emphasised by Masson-Zwaan: “Ownership isn’t needed to carry out activities in outer space, just as mining rights can be exercised without owning the land in question.”

But ownership has been claimed for geostationary orbit. In 1976, a declaration made by various equatorial nations, known as the Bogotá Declaration, stated that the orbit was an extension of their national airspace. Non-equatorial countries were sceptical, however.

Further out, the Moon has the equivalent area of North and South America combined, with concentrations of precious metals including aluminium, titanium, platinum and rare earth elements. Apollo 17 astronaut Harrison Schmitt champions mining for Helium-3, a rare isotope enabling clean nuclear fusion. On Earth, Helium-3 can only be acquired by dismantling nuclear weapons. But a Shuttle bay filled with the stuff could power the US for a year. “In the short term, the main market for these resources will be people already in space,” says Professor John S Lewis of the University of Arizona’s Lunar and Planetary Laboratory, author of Mining The Sky.

Sourcing local materials will make space operations much cheaper. Planning for such operations is already underway. Diver and engineer Bill Stone – developer of NASA’s DEPTHX robot for exploring Mexican sinkholes and Antarctic lakes – plans to mine ice from the Shackleton crater at the Moon’s south pole. If all goes well, his Shackleton Energy Company will be depositing water at Earth-orbiting ‘gas stations’ by mid-decade. Today, half the cost of a space mission goes into escaping Earth’s atmosphere. With Stone’s plan, future missions could employ smaller, cheaper rockets that could obtain all the fuel they need for space operations from his ‘gas stations’. The mined ice would be turned into water that would be split into hydrogen for rocket propellant and oxygen for the oxidiser needed for ignition.

Not in my back yard

If and when the Moon becomes a place of business, different users could come into conflict. Durst’s lunar observatory, other scientific users and tourists could lose their views as mining outfits kick up lunar dust. There might also be the lunar equivalent of noise pollution: Apollo seismometers established that the geologically-inactive world rings like a bell when struck. A lunar equivalent of the ITU might become essential, with whole regions of the Moon zoned for different uses.

There are many issues to confront but ultimately, the sky’s the limit, argues Professor Lewis. “If we think we’re running out of resources we need to look up,” he says. He calculates that asteroid resources could sustain trillions of people until the Sun dies. But before we can begin exploiting such resources, the issues of ownership need to be addressed. And that is exactly what space entrepreneurs like Durst will be hoping for when they put the space property issue to all candidates in next year’s US Presidential election. “It needs debating,” says Durst. “Space property claims are going to be happening soon – within the next presidential term.”

Sean Blair is a space journalist and is currently working for the European Space Agency

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