Property Rights in Space: Where Does the Law Stand Now?

Authors

Frans von der Dunk, University of Nebraska–Lincoln College of LawFollow

Date of this Version

2024

Citation

Chapter in Comparative Visions in Space Law (Sirio Zolea, ed.), Rome: Roma TrE-Press (2024), pp. 169–187.

Comments

This work is published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND 4.0).

Abstract

1. Introduction: property rights in outer space?
2. Rights over immovable property and outer space – the discussion on Article II of the Outer Space Treaty
3. National developments contributing to an interpretation of Article II of the Outer Space Treaty
4. Concluding remarks

In discussing the issue of “property rights in outer space,” it should first be clarified that at a general level there might be three categories of property rights at issue.

First, there is the issue of “intellectual property rights,” the rights that individuals or other right-holders might enjoy when it comes to exclusively using, marketing and/or selling the results of intellectual efforts. This concept is not mentioned in the Outer Space Treaty, the seminal convention of 1967 providing the legal framework for all space activities, or indeed any other of the core space treaties. This essentially means that the potential application of intellectual property rights in the context of space activities is not fundamentally different from its application in other domains, albeit that some States have taken the step of at least legislating in general terms on the concept and addressing its application in the particular context of outer space and space activities.

Second, there is the issue of rights over “movable” property, basically any physical item that can be moved and potentially be subject to someone “owning” it, as opposed to untouchables such as “air” or “radio frequencies.” Here, given the nature of outer space as a realm following Article II of the Outer Space Treaty beyond the territorial jurisdiction of any particular State presenting a kind of “global commons” or res extra commercium, it was considered prudent by the drafters of the Outer Space Treaty to reiterate that “[o]wnership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” In other words: any item on Earth legally belonging to someone, remains the property of that person even if sent into outer space and/or coming back therefrom to Earth.

It is the third category of property, of immovable property—in terrestrial terms: real estate and anything “immovable” on (such as buildings) or in (such as mining corridors) it—and the rights thereover, which has recently triggered substantial discussions in particular in the realm of outer space and space activities. It is this category, therefore, which will constitute the subject of further discussion by the present article.