Bringing Space Law into the Commercial World: Property Rights without Sovereignty

Authors

Henry R. Hertzfeld, George Washington University
Frans von der Dunk, University of Nebraska - LincolnFollow

Date of this Version

Summer 2005

Comments

Published in CHICAGO JOURNAL OF INTERNATIONAL LAW, v.6, no.1 (Summer 2005), pp. 81-99.

Abstract

International agreements declare that no government can claim outer space or celestial bodies in outer space as its own. Private firms seeking to invest in potential space enterprises frequently point to these provisions as a major barrier to the future commercial development of space. Such businesses contend that the absence of property rights prevent them from obtaining external financing, hinder the protection of their investments in space, and deprive them of the assurance that they can appropriate income from their investment. In short, the lack of sovereignty in space jeopardizes the ability to make profits from private investment.

This article will critique those claims, arguing that most property rights exist in space and that the lack of sovereignty does not pose current or near-term problems for the types of business ventures likely to be developed in space. Furthermore, even in the case of future ventures, solutions based on terrestrial models would permit private companies to operate in space with reasonable reliance of the right to appropriate income from their investments.

The most threatening current problem surrounding the issue of real property rights in space is in actuality not related to space entrepreneurship. It instead arises from shortsighted greed premised on misinterpretations of treaties and other applicable laws. For example, several companies have been selling land on the moon and issuing "deeds" to that land, behavior which unequivocally violates space law treaties. If the public perceives that this action is legal, as evidenced by a lack of government willingness in putting a halt to these activities, serious harm could result in the future.

Regardless of this near-term problem, it is important to evaluate the true meaning of the lack of sovereignty in space in a commercial context. Following such analysis, this Article concludes that the lack of sovereignty will not deter future private space ventures to the extent commonly believed. Ownership problems raised by international agreements have solutions not requiring a major change in existing space law, but rather carefully drafted additions and amendments to the current legal regime.