It will be viewed as a historic milestone: the act that first allowed merely multinational mega-corporations to become interplanetary ones: The United States congress has recently passed legislation, H.R. 2262, that guarantees the private property rights of United States citizens in space.
On the surface, private property rights in space may seem like an innocuous, or even positive development. We are on the cusp of a real space age, as private companies begin exploring Earth orbit and our solar system. As a species, we need to come to an agreement over how space assets will be managed and regulated, and private property rights in space would be a major needed component of such an agreement. In general, commercial enterprise in space is good thing for expanding humanity’s reach into the solar system.
But the actual text of this bill raises questions of equity and corporate oversight for humanity’s future in space. The bill is a clear violation of a decades-old treaty that pledges to make space the peaceful domain of all of humanity. Without additional oversight, this law could legally change the role of the United States in space from guarantor of freedom to protector of profit.
I find the issues raised by the law timely, as my upcoming novel Red Soil through Our Fingers that imagines a future Mars where corporations own vast stretches of Mars.
Background: The 1967 Outer Space Treaty
For almost five decades, the guiding document for human activities in space has been the 1967 Outer Space Treaty, first ratified and signed by the governments of the UK, the USA, and the USSR. It has since been signed by 104 countries, including China and India. Articles I and II of the OST are below.
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
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.
It seems pretty clear to me that the OST unequivocally declares outer space and everything in it to be the property of no one in particular; and if we are to make use of what is out there, it should be for the benefit of everyone.
The New Law, H.R.2262, is a Violation of an International Treaty
Title IV of H.R.2262 (“The Space Resource Exploration and Utilization Act of 2015“) basically establishes the right of US Citizens and commercial entities to extract resources and own property (including extracted resources) in space. It also obligates the US Government to advocate, promote, and (implicitly) defend these private property rights.
51302.a.1 […] promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.
§ 51303. A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.
The two sections I’ve excerpted above form the meat of Title IV. The bill is also careful to add at the very end, “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”
That last statement is an important disclaimer. With it, lawmakers are apparently trying to stave off accusations that the bill directly violates Article II of the OST… simply by declaring it to be official US policy that the US is not violating Article II of the OST.
But saying something is so does not make it so. Certainly, the US Government does not seem to be planning to directly stick a flag into a celestial body and declare it a territory of the Untied States. But allowing US Citizenship (a national designation) to confer rights to space assets, and then pledging to protect those rights as if they were any other property of a US Citizen, is effectively asserting national jurisdiction over any portion of space claimed by a US Citizen or commercial enterprise. How else can a domestic law be construed to confer property rights outside of any sovereign domain?
Another common argument seems to be that the OST only applies to governments and national space programs. But Article VI of the OST states:
“Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.”
In other words, a US citizen or commercial operation, government or not, is still subject to the agreement, and the US Government is responsible for ensuring that any US entity does not violate the OST. This new act does precisely the opposite — it actively incentivizes US citizens and corporations to violate international law, seeking profit at the expense of the rest of the world.
So the US has passed a domestic law that appears to violate its obligations under an international treaty that has kept the peace in space for half a century. The clear beneficiaries are the private corporations that are both large and technologically advanced enough to take advantage of the situation. Perhaps this law is needed to kickstart meaningful commercial activity in space. But the potential profits could come at the expense of the rest of humanity.
After OST: The Moon Agreement
The fact is that the 1967 Outer Space Treaty, while well-intended, is simply out of date. It was written and ratified in an era when the only conceivable entities that might be seeking to explore and exploit space resources would be large government programs. The idea that people might live and work in space and on other celestial bodies was mostly confined to the domain of science fiction.
In this century, we need to deal with the reality that private entities (including individuals and corporations of many nationalities, or no nationality at all), will be exploring and expanding their interests into Earth orbit and beyond at least as much as governments, if not more so.
The idea that everything in space could be communal and accessible to all of humanity is a fantasy, and flatly unenforceable in the context of contemporary sociopolitical realities. People will want to extract resources from space assets for private gain, and perhaps it makes good sense to do so. But if we are to allow this, we must also ensure that space remains the heritage of all of humankind.
We tried to solve this problem. Just over a decade after the OST, the United Nations adopted the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” (better known as the Moon Agreement) in 1979, which actually provided a framework for resource extraction by international bodies and enforcement by the United Nations acting under international authority. Space would become, in essence, the jurisdiction of the international community, not allowing private interests or even national governments the opportunity to push their interests above those of the world as a whole.
This sounds pretty good, or at least more workable than the OST while still preserving the benefits of space for all people.
However, sadly (but perhaps unsurprisingly), the United States and all other space faring nations refused to ratify the 1979 Moon Agreement. The UN Office of Outer Space Affairs (UNOOSA) remains in theory the international arbiter of space property, but in practice is completely without legal or practical ability to enforce anything.
Imagining the Consequences of Weak Public Space Policy
I’ve argued before that letting private corporations do whatever they want in space is a one-way ticket to wealth disparity on a scale humanity has never seen in its entire history as a species. We need to consider how to regulate future space activity early on, before the corporations become entrenched and the system becomes ungovernable.
My upcoming novel, Red Soil Through Our Fingers, envisions people’s lives in a future where unregulated corporations own property in space in what is almost a literal extrapolation of H.R. 2262. Weak public space policy could mean potentially dire human rights consequences for the foreseeable future.
Proponents of a libertarian economic approach to space property will argue that maximizing profit incentive is necessary for anything to happen in space. The start up costs in time and infrastructure are so high that a proportionately large return would need to be on the other side for any rational company to invest in such an enterprise. This argument has merit. But cost reduction can be provided in the form of government or international investment in common infrastructure, while still maintaining appropriate regulation and redistribution.
A slower expanse into the solar system is worth the wait, if it means we do it right.
A Possible Way Forward
One approach could be to use the Moon Agreement as a basis, but make key modifications such as removing the restriction on any non-UN entity to occupy, extract, and utilize resources. I do believe that we need a structure for allowing private property and commercial exploration and extraction of space resources. However, there must also be a credible system for international oversight, regulation, and redistribution of a portion of extracted resources, for the benefit of humanity as a whole.
Granting UNOOSA the ratified authority of all space-faring nations, providing it with credible space enforcement capability, and empowering it to tax and redistribute a portion of all resources recovered from space to the world would be one way of simultaneously meeting two goals that seem mutually exclusive: (1) Incentivizing commercial space development through profit, and (2) Ensuring that the resources of outer space remain the heritage of all of humanity.
Arriving at such a political structure would be an ugly challenge given the current state of global politics and the degree to which corporate and wealthy interests already control the agenda of most world governments. Most countries have a hard enough time getting the wealthy to pay taxes to support the public good even at the local level, to say nothing of attempting a tax-driven social program across the whole globe. But it is a challenge that must be met if we are to have any sort of sustainable, equitable, and responsible expansion into space as a species.