Recent years have seen tremendous growth in the private space industry, with companies like Orbital Sciences Corporation and SpaceX shipping supplies to the International Space Station. But current space treaties’ lack of private property rights discourage similar groups from expanding their work out of earth orbit and into the rest of space. At SpaceNews.com, TF’s Berin Szoka explains the importance of space property rights and how we can get there:
Many blame the lack of space “property rights” for the lack of commercial success beyond Earth orbit. Some insist governments need to incentivize development of the Moon, our “eighth continent,” by giving away huge tracts of land to the first companies to build bases. Such celestial land grabs are specifically outlawed by Article II of the Outer Space Treaty of 1967, whether such claims are made by countries or by private entities.
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. These are not only consistent with international space law, but required by it. Article I of the treaty guarantees free access to explore “and use” space. Article VIII explicitly recognizes that ownership of facilities and vehicles isn’t changed by being in space. Article IX implies that the United States could recognize a limited exclusive “safety” zone around such facilities to protect against harmful interference.
Bigelow’s territorial rights would be limited in scope, contingent on ongoing operations, and not absolute — lest they constitute territorial “appropriation,” which the treaty explicitly bars. Article 9’s noninterference clause is a two-way street: Depending on where Bigelow sets up operations, in order to allow for “the corresponding interests” of others, it might have to allow others some limited form of access through its safety zone — think easements. But none of these limitations undermines the core function of property rights: to operate without interference and exclude others from the revenue stream generated by finding and utilizing extraterrestrial resources.