Prakhar Maheshwari, West Bengal National University of Juridical Sciences
Recently, the usage and outlook of space as a resource has become prevalent. Humans have sought to use it for economic benefits, and exploit lands beyond the earth. This paper deals only with tangible property, and does not include intellectual property in its analysis. To govern activities in space, the United Nations Committee on the Peaceful Uses of the Outer Space (UNCOPUOS) introduced several treaties like the Outer Space Treaty, the Moon Treaty, Rescue Treaty, Liability Treaty and Registration Treaty, declaring outer space to be res communis, where all entities have common access to the resources that are contained within its realm and are precluded from making any claims of ownership. The approach of res nullis was rejected, as it would have proclaimed outer space to be available for conquest. However, these treaties encourage the exploration of outer space for peaceful purposes. While national appropriation is expressly not allowed, there is no mention about private ownership of celestial bodies. Confusion over private property rights has given rise to many land claims by people, most famously Dennis Hope, and American presidents Jimmy Carter and Ronald Reagan. However, these claims face hurdles such as a lack of a permanent settlement, lack of sovereignty, no productive use of property barring reselling, and the res communis principle. The paper then makes a case for allowing privatization of space and allowing mankind to benefit from this resource fully.
Why is it important to study property rights in outer space?
Everybody in this world, including us, wants to acquire property. Property means money, money means power, and power means you are the rulers of the world. Evolved with the power of thinking, we humans are curious and want to conquer territories and lands. Our ancestors set out on adventures to find lands and hence this passion for exploration and desire to acquire property is in our blood.
We tend to use all available resources to us on earth. The space, in a way, is a resource and it was only a matter of time when looked up in the sky and made up our minds to make the best possible and economical use of this resource. Not only is it in human nature, but it is also economically beneficial for us to explore and exploit lands beyond Earth. Exploration requires technology, men and investment and this could only mean wealth for such nation or company. However, which nation or company would go into such a risky project if it is not going to be able to earn profits?
Hence this topic is an extremely important part of space law. This paper deals only with real property rights and not intellectual property rights in the Outer Space.
With humans exploring and reaching new heights in outer space, treaties governing their activities were required. The legal sub-committee of United Nations Committee on the Peaceful Uses of the Outer Space (UNCOPUOS) introduced several treaties like the Outer Space Treaty, the Moon Treaty, Rescue Treaty, Liability Treaty and Registration Treaty. The exercise of sovereign control in outer space was the initial focus of the drafters of the outer space treaty.[i] They rejected the concept of res nullis which would have treated the outer space as “unclaimed territory” that belongs to no one, but was available for conquest. Such an agreement would allow nations to peremptorily claim ownership of the celestial bodies that they were the first to reach and exclude access to all others. Instead they declared outer space to be res communis where all entities, individual or corporate, and nations have common or open access to the resources that are contained within its realm and are precluded from making any claims of ownership. The basic principles governing these treaties are the non-national appropriation of outer space and res communis.
The two important treaties in connection with property rights in outer space are the Outer Space Treaty and the Moon Treaty. The Outer Space Treaty provides the basic framework on international space law and includes the principles like the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind and that the outer space shall be free for exploration and use by all States. “This principle gives rise to the principle of common heritage of mankind. Common Heritage of Mankind, which although has not been expressly mentioned, is discussed in Articles 1, 2 and 4. It is a principle of international law which holds that defined territorial areas and elements of humanity’s common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations. Common Heritage of Mankind, however has very limited scope in outer space due to the ambiguity of treaties governing it.”[ii]
Article II of The Outer Space Treaty clearly prohibits any national appropriation, by claim of sovereignty, by use and occupation or by any means. This means that the Governments of the world cannot acquire any land for their own benefit in the outer space. The loophole in the treaty, however, is the silence over private ownership of celestial bodies.[iii] The Moon treaty on the other hand clearly bans any kind of privatization of moon and other celestial bodies by even an individual under Article 11. “This article also provides that ‘the moon and its natural resources are the common heritage of mankind’ Moon treaty however fizzled out because important and influential countries like U.S. and U.S.S.R. did not ratify it, with only 13 United Nations countries ratifying it.”[iv] Hence we will concern with only the Outer Space Treaty in this project.
Although outer space cannot be appropriated by nations, the objects launched by nations are considered to be the property of the states. Hence, for example, the satellites launched by India will be considered to be the national property of India.
Property Rights and Geosynchronous Orbit
The outer space treaty completely bans national appropriation of outer space. However, it allows and encourages exploration of outer space for peaceful purposes. Geosynchronous orbit is one such area of outer space which can be nationally appropriated. “Satellites in geostationary orbit must all occupy a single ring above the Equator. The requirement to space these satellites apart to avoid harmful radio-frequency interference during operations means that there are a limited number of orbital “slots” available, thus only a limited number of satellites can be operated in geostationary orbit. This has led to conflict between different countries wishing access to the same orbital slots (countries near the same longitude but differing latitudes) and radio frequencies. These disputes are addressed through the International Telecommunication Union‘s (ITU) allocation mechanism.”[v]
Claims of property rights in Outer Space
Anything otherwise expressly prohibited, no activity can be said to be banned.[vi] While national appropriation is expressly not allowed, there is no mention about private ownership of celestial bodies. Confusion over private property rights has given rise to many land claims by people. The two most interesting claims are by Dennis Hope and Gregory Nemitz which I will discuss in the next part.
Dennis M. Hope is a citizen of United States who filed a declaration of ownership with the U.S., UN and USSR and claimed property rights over the Moon. On getting no response, he assumed his ownership and even started a company called “Lunar Embassy”.[vii]
Dennis Hope claims that he has right to own property on moon as The Outer Space Treaty only bars nations from appropriating moon and other celestial bodies in the outer space but doesn’t bar any individual or company.[viii] “He founded his company in 1980 to sell parcels of celestial property to private entities. Lunar Embassy then also informed the UN and USSR of its claim. Any citizen can purchase the property for approximately 20$ only and can earn the property rights.” Hope has gone to the extent of selling property rights at 19$ for one acre of land on Mercury, Venus and Mars as well.[ix] On paying this minimal amount, one gets three documents – a Deed, a map and the Constitution and Bill of Rights, formulated by Hope himself, of that particular celestial body. A short story “You Own What?” is also provided which includes the declaration of ownership filed with the United States, the USSR and the United Nations.[x]
Although Dennis hope claimed his property rights over the moon, the UN, US and USSR chose to remain silent on the issue and did not reply to him. This means either they recognize his claim or think his claim is too childish and insufficiently ripe to file suit.[xi] On asking Dennis Hope about how he considers the signatories’ silence as a recognition to his claim, he replied, “People have said just because the UN never responded doesn’t mean you own it. Well, I did my due diligence, they should have done theirs.”[xii] “Hope even said that he wishes to form a “democratic republic sovereign nation,” the Galactic Government, in which his property-owning customers will enjoy voting rights. If other nations infringe on the territory he has claimed, he will view their incursions as acts of war.”[xiii]
As many as 6 million people have already purchased land from Lunar Embassy, which includes, some celebrities, NASA employees and even American presidents like Jimmy Carter and Ronald Reagan. To not reply to the claims made by Hope, the signatories of the treaty are only creating confusion over the legality of such a claim.
Although the company has attracted a lot of attention, there are several problems with its territorial claims. One of the major drawbacks of Hope’s claim is the lack of a permanent settlement on moon. Although Lunar Embassy has customers who would constitute its citizens, they do not live together on moon and hence the settlement is not permanent.[xiv] To claim property rights on earth, one does so either under Civil Law or Common Law. Civil law requires a person to take up an unclaimed land, occupy it, use it and does something productive with it to claim his property rights. Once he does that, the Government recognizes his rights over that particular property. This is the use and occupation method. Under common law, property rights originate from the State. The whole territory of the state is its property and its citizens have to ask for the land. Since outer space doesn’t recognize sovereignty, civil law must be applicable in outer space. In the present case however, the only use of the property is reselling it. With technologies at present, no individual can go to moon and start living there and does any occupation. Hence the fact that no customers are living on the claimed territories, the moon cannot be said to be owned by Lunar Embassy.
Secondly, as already discussed above, outer space follows the concept of res communis and not res nullis.[xv] The outer space is for everyone’s enjoyment and exploitation and no one person can claim it as his own.
Thirdly, his claim that he is the first person to raise such a claim is not true. Few people have already tried claiming various outer space areas before Dennis Hope like Frederick in the 19th century, James Mangan[xvi] in 1948 and Jenaro Gajardo Vera[xvii] in 1953.
The best counter the UN might use against Lunar Embassy is that while the company may claim that it has legal title to the moon, its claim is in direct contradiction to international law.
Another extremely surprising and shocking thing about this case happened in 2003 when the National Republican Congressional Committee awarded Lunar Embassy and Denis hope with medals and prestigious prices. The news reads on their website, “Mr. Hope has been named co-chairman of the Republican Congressional Business Advisory Council. He has also been given the national Republican Leadership Award and most recently he has been issued the highest honor the national Republican Congressional Committee has, the prestigious Republican GOLD Medals.”[xviii] While such news cannot be confirmed from the websites, it cannot be said that US has started to acknowledge it because no formal recognition has been given to Lunar Embassy. Although the signatories of the Treaty do not believe that it is important to answer such an issue, claims like that of Hope cannot be ignored.
Claims like these wide open the discussion on private ownership of outer space. It leaves a big fill in the blank on interpretation of Article II of the Outer Space Treaty.
This brings us to the basic question of interpretation. There can be four ways of interpreting private ownership in outer space. The first one is the lenient method in which national appropriation is considered to be separate from private ownership.[xix] This kind of interpretation supports claims by people like Dennis Hope who believe there is a loophole in the Outer Space Treaty in the language of Article II of the Outer Space Treaty. This type of view isn’t followed by many authors.
Most of the authors have a different viewpoint that private ownership too is banned under OST and that private owners are just an extension of a nation.[xx] Many agree that such a view was taken even while formulating the OST. “The delegate Bal of Belgium said “his delegation has taken note of the interpretation of the term ‘non-appropriation’ advanced by several delegations as covering both the establishment of sovereignty and the creation of titles to property in private law. The French Delegate also mentioned, one of the three basic principles that have been affirmed is the prohibition of any claim of sovereignty or property rights in space. The reason why a clear mention of ban of private ownership was not mentioned was because such a thing had already been discussed at the negotiating table. Another point working in favor of this view are the words in the article “By any other means”. There cannot be appropriation by any means and hence private ownership is included in it. Final supporting point of this view can be the fact that private ownership cannot exist without National appropriation. This means that one occupies land on behalf of the state. Hence the state must acknowledge such a claim.”[xxi]
Another viewpoint is that private ownership can occur under individual sovereignty.[xxii] It can be contended that it is not a requirement for a state to exist to give birth to property rights.[xxiii] Many different authors have pointed out that real estate isn’t just a word but is formed by morals and ethics like trust, respect, care and duty towards the nature, etc.[xxiv] It is isn’t wrong to say that such habits must have existed even before colonies were made or societies were established, giving birth to a state.[xxv] Hence under this view, one can claim individual sovereignty.
The last viewpoint is that private ownership may occur under international sovereignty. In the Article II of the OST, it has been given that there cannot be national appropriation. Nowhere is it written about international appropriation.
The Board of Directors Of the International Institute of Space Law (IISL), however in a statement, have given a major boost to the viewpoint that Article II of OST includes ban on private appropriation of outer space. The board said that, “the activities of non-governmental entities are national activities. The prohibition of national appropriation thus includes appropriation by private entities whether individuals or corporations since that would be national activity.”[xxvi]
We however come down to the basic question. Do we really need property rights in outer space? The answer to this question should be yes. For any development of the understanding of the outer space, there has to be exploration and exploitation of outer space. The private parties would not spend billions of dollars if they do not earn profit over them and have to instead share it with other countries and sovereigns. Random land claims over celestial bodies might be vague as the only use of such properties would be selling deeds. This type of claim may not sustain. To claim property rights over celestial bodies, there must be use and occupation. So if a group of people from different countries are launched and funded by a multinational body to settle on moon, will it give rise to property rights?
An example of such settlement in outer space already in place is the International Space Station. The ISS consists of astronauts, engineers, etc from different countries and sovereigns. Mars-one is an upcoming mission to mars for which this multinational initiative has chosen people from all over the world.[xxvii] There are however certain issues which must be dealt with.
As a matter of first importance, we should simply envision people can at last build a perpetual living space on the lunar or Martian surface. The real question that may emerge is the manner by which to figure out which nation is qualified to uphold its purview over that extraterrestrial settlement? Because of the Liability Convention, governments are singularly in charge of their nationals’ tries in space.[xxviii] At the end of the day, if a space module, either in circle or on a surface, is manufactured by a given private or open element of a nation, the separate government has unquestionably the ward inside such module and its occupants, much the same as the legitimate circumstance of hailed vessels in high oceans.[xxix]
“For instance, the International Space Station is comprised of various modules that belong to US, Russian, European, or Japanese registered entities. Should any legal necessity arise, the owner government of the module in which the legal incident occurred would have jurisdiction. Such a legal criterion, though, will not be appropriate for even a relatively small permanent human settlement in space with numerous governments involved. Any legal incident will require studying the national law of the government who owns the module, chamber, or installation where it took place, something that, if not impossible, would be confusing and totally annoying.”[xxx]
One answer for this issue is the presentation of a Specialized Space Code of Conduct to blanket the most well-known legitimate subjects inside multinational space stations or extraterrestrial natural surroundings.[xxxi] So in the event that any infringement of lawful rights happen, all debate naturally get alluded to the particular implicit rules that speaks to the agreement of all the included governments.[xxxii] This code could be focused around the most well-known and generally acknowledged standards of major legitimate frameworks in the fields like tort, common, or criminal law that consent to general straightforward lawful needs of those in space territories.[xxxiii] Real criminal acts or confused instances of risk that are not secured by Special Space Code of Conduct may be alluded to the concurred global tribunal on Earth.[xxxiv]
Commercialization of space is the second issue that is of significant vitality, essentially as to making motivators for pulling in more players in peaceful space activities.[xxxv] With a specific end goal to induce the investigation and improvement of space by privately owned businesses, it is certain to perceive the right of proprietorship in space.
In the event that there weren’t such constraints in regards to the responsibility for bodies, we would likely have seen the first space settlements at this point. In any case, it still is possible to try out ways to establish dummy property rights. This will help in motivating private and public companies to invest in this market.[xxxvi]
When human settlements on adjacent heavenly bodies are secured, their business trades with Earth will turn into an issue. Space vagrants who decide to leave Earth and settle in an uncomfortable solid or metal base on the Moon or Mars must have exceptionally solid motivators to step forward for such amazing enterprise. There appears to be no more noteworthy prize than the lucrative monetary open doors found in a settlement on an outsider surface brimming with potential assets.[xxxvii]
“The positive economic exchange rate with the Earth may assure the continuation and even expansion of space settlements on celestial bodies. Otherwise, settlers either will depend on equipment and reinforcements from Earth or go bankrupt. This may shed light on the importance of adopting suitable legal regime for human space settlements that, on one hand, fuels the needed investments for establishment of space settlements and, on the other hand, helps the efforts of inhabitants those settlements flourish economically and leads ultimately to their self-sufficiency.”[xxxviii]
In conclusion I would say that we are slowly but steadily moving towards colonization of outer space and various celestial bodies. With pressure on resources on earth rising everyday, we must modify our treaties, if need be, to allow privatization of outer space. Settlements is a better and fairer method than random claiming of moon and such an adventure must be carried out efficiently and with maximum support and seriousness.
This brings me to the last part of my project on Nemitz Case
The present case involves Gregory W. Nemitz’ (Appellant) assertion of private property rights in asteroid 433, “Eros”. The object in contention is Eros which is a large asteroid in stable orbit around the sun. On its closest orbit between the Earth and Mars, Eros was 14 million miles away.[xxxix] “The Appellant claims that his ownership of Eros is based on his registration on the Archimedes Institute website and his filing of a California Uniform Commercial Code security interest, in which he named himself as both creditor and debtor.”[xl] This claim arises out of the February 12, 2001 landing of NASA’s NEAR Shoemaker spacecraft on Eros. The appellant claimed that the landing of the NASA spacecraft infringed his private property rights and that he should be compensated for parking and storage fees which total twenty cents per year, or 20$ per century. He estimates Eros’ initial value to be 8 billion$. Every day the spacecraft remains on Eros without paying the claimed fees, the Appellant alleges that he is suffering special damages of 5 million $ because he is legally inhibited from accessing the full value of the asteroid and proceeding with his planned developments.[xli]
The arguments put up by Nemitz were mainly related to his natural rights as a citizen of US and dealt with the Constitution of US. One argument however was related to Outer Space. He says that the Outer Space Treaty does not apply to him and that any application of the treaty would be unconstitutional.[xlii] He says that owning property is his natural right and that the Outer Space Treaty would not apply to him because he has neither asked the never granted the United States Government the right to act in this manner nor has he acted in any manner that could strip him of his “sovereign” authority to enter into agreements of this type.[xliii] According to the Appellant, he should have personally entered into such an agreement but since he hasn’t, it would be unconstitutional to consider Outer Space Treaty.
The arguments put forward by the State are that Constitution does not produce rights. Nemitz had himself agreed to the fact that his claim of natural right cannot be found in any statute or common law.[xliv] The State argues that there is no use or occupation of the property to show that Nemitz had any property interest. The State says that since there is no interest, there arises no right over it. The District Court hence doesn’t need to take into account the Outer Space Treaty.
It was held that neither the failure of United States to ratify the Moon Treaty nor the States’ ratification of the OST created any rights in Nemitz to appropriate private property rights on asteroids. The conclusion that can be drawn directly from the case is that no person has natural right over any property. Neither the common law nor the civil law considers any natural right over priority.
The case is important in this aspect that first of all, this was the first case that went to the courts. Before this, only claims had been made and court had never been approached. The appellant fails however, because he cannot prove that he has natural property rights over outer space or any part of outer space. He tries to establish this through US constitution but court dismisses it. The one issue that should have been raised but neither parties did so was the interpretation of Outer Space Treaty’s Articles 1 and 2. From this case we can conclude that Article 1 and 2 only prescribe enjoyment of outer space by nations and people. Article 2, although bans nations from appropriating the space, is quiet on the issue of private appropriation. This court however, to some extent, tries to establish the fact that even private entities would face tough competition in proving their legality in claiming property rights. By dismissing the case in favor of the respondents, it can be said that the private entities can maximum enjoy the outer space but have a long way to go to establish property rights.
Edited by Neerja Gurnani
[i] M. Listner, ‘The Ownership and Exploitation of Outer Space’ .
[ii] E. Guntrip, ‘THE COMMON HERITAGE OF MANKIND: AN ADEQUATE REGIME FOR MANAGING THE DEEP SEABED?’ .
[iv] M. Listner, ‘The Moon Treaty: failed international law or waiting in the shadows?’ .
[v] L. D. Roberts, ‘A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union’ (law.berkeley.edu 2000) <http://www.law.berkeley.edu/journals/btlj/articles/vol15/roberts/roberts.html> accessed 1 September 14.
[vi] M. Listner, ‘The Ownership and Exploitation of Outer Space’ .
[vii] R. Ahmed, ‘Car Salesman Owns The Moon, Has Made $11 Million By Selling Plots To Tom Cruise And President Reagan’ (hngn.com 2014) <http://www.hngn.com/articles/33529/20140611/car-salesman-owns-moon-made-11-million-selling-plots-tom.htm> accessed 1 September 14.
[viii] E. SVOBODA, ‘Who owns the moon?’ (salon.com 2008) <http://www.salon.com/2008/01/19/moon_real_estate/> accessed 1 September 14.
[ix] ‘Introduction’ (lunarembassy.com ) <http://lunarembassy.com/#!prettyPhoto> accessed 1 September 14.
[xiii] E. SVOBODA, ‘Who owns the moon?’ (salon.com 2008) <http://www.salon.com/2008/01/19/moon_real_estate/> accessed 1 September 14.
[xvi] Science Illustrated, ‘Chicago Man Stakes Claim to Outer Space ‘ (blog.modernmechanix.com 2008) <http://blog.modernmechanix.com/chicago-man-stakes-claim-to-outer-space/> accessed 1 September 14.
[xvii] V.G. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (1st, Springer Publishing, 2009) 3.
[xviii] ‘DENNIS HOPE RECEIVES THE PRESTIGIOUS REPUBLICAN GOLD MEDAL’ (lunarembassy.com ) <http://lunarembassy.com/us-congress> accessed 1 September 14.
[xix] V.G. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (1st, Springer Publishing, Romania 2009) 63.
[xxi] V.G. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership (1st, Springer Publishing, Romania 2009) 63.
[xxvi] ‘Statement by the Board of Directors * Of the International Institute of Space Law (IISL) On Claims to Property Rights Regarding The Moon and Other Celestial Bodies’ (www.iislweb.org 2004) <http://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf> accessed 1 September 14.
[xxvii] ‘Human Settlement on Mars’ (mars-one.com ) <http://www.mars-one.com/> accessed 1 September 14.
[xxviii] B. Shakouri, ‘Space settlement and future of space law’ (thespacereview.com 2013) <http://www.thespacereview.com/article/2269/1> accessed 1 September 14.
[xxx] B. Shakouri, ‘Space settlement and future of space law’ (thespacereview.com 2013) <http://www.thespacereview.com/article/2269/1> accessed 1 September 14.
[xxxvii] B. Shakouri, ‘Space settlement and future of space law’ (thespacereview.com 2013) <http://www.thespacereview.com/article/2269/1> accessed 1 September 14.
[xxxix] R. Kelly, ‘NEMITZ v. UNITED STATES, A CASE OF FIRST IMPRESSION: APPROPRIATION, PRIVATE PROPERTY RIGHTS AND SPACE LAW BEFORE THE FEDERAL COURTS OF THE UNITED STATES’  297.