January 25th, 2022 |
Jonathan Thorvilson
The recent Beyond Earth webinar titled “Recognizing Property and Ownership in Space” reminded me of one of my favorite space stories. On a clear night in 1980, Dennis Hope, while pondering the Moon in the sky, forged an outrageous idea to lay claims of ownership over the moon and essentially every other celestial body in the solar system, and subsequently sell the rights to his freshly “acquired” property. According to him, a loophole in the Outer Space Treaty allowed him to make this claim. He argued that because of the language used in the treaty, it cannot be interpreted to apply to individuals. And plenty of people apparently think he might be right. As of 2014, Hope has over 6 million customers, and has reportedly sold lunar plots to both Hilton and Marriot. So then that must be it… Dennis Hope owns the Moon.
Not so fact. If you ask just about any space lawyer, they’ll tell you that the only thing Dennis Hope owns is a boatload of money acquired by selling something he doesn’t actually own. Furthermore, what Hope has really been selling are somewhat frightening insights into the current state of international space law, particularly regarding property rights. Hope’s extraterrestrial real estate sales help exemplify the fact that, in space law, there are currently more questions than answers.
The fuzziness housed within the Outer Space Treaty gave Hope just enough of a leg to stand on, and my real concern rests not with Dennis, but with what future arguments the tenderly outlined intricacies of the Outer Space Treaty will potentially give rise to.
“The topic [of space property rights] which has largely been an academic discussion among space law professionals, is about to become very real, very fast” said Steve Wolfe, President and cofounder of the Beyond Earth Institute, during the recent webinar focusing on the very issue.
It is because of this topic’s intense acceleration that the space community must be ready to have the necessary conversations that will enable an effective and equitable policy and legal framework concerning property rights in space. The Beyond Earth institute aims to be a catalyst for these crucial conversations, and took its first step in doing so in hosting a webinar titled “Recognizing Property and Ownership in Space” on December 15th.
In the nearly two-hour session Wolfe was joined by the moderator of the event, director of the Space Law Center at the Ole’ Miss School of Law, Michelle Hanlon, along with Christopher Borgen, Michael Waltemathe, Robert Brumley, and special guest Pete Warden as the academically diverse group discussed various aspects of the topic at hand.
Understanding the gravity and complexity of delineating a sound legal and policy framework regarding property rights in space, Beyond Earth did not expect this session to offer any sort of magic instant-fix. Rather, the webinar was intended to operate as a foundational conversation on the matter, with the hopes of it leading to additional discussions that will all work to inform future policy decisions.
One of these discussions, as Christopher Borgen points out in his opening remarks, will surely be centered around outlining exactly what the infamously vague language in Article II of the Outer Space Treaty means.
Borgen discusses how there are numerous ways in which a state could indicate how it interprets the Article II language. For example, he mentions how states can enact domestic laws that demonstrate their interpretations. However, this leaves open the door for other entities to enact conflicting laws, or to reject these laws outright.
Similarly, a state can use what Borgen called coordinated interpretation to express its reading of the treaty. He suggests the Artemis Accords are a form of this, featuring numerous states coming together to express their interpretive ideas through the document.
Borgen also emphasized the importance of insuring that any actions taken regarding the law and policy of extraterrestrial property rights must bee done so in a fair and equitable manner. This is a point that was not lost on any of the speakers, particularly Michael Waltemathe.
Waltemathe inclusion on the panel offered a fresh perspective on the aforementioned concepts, as he is a theologian. Having been studying space and its connections with theology for roughly a decade, Waltemathe’s perspective opened up questions on various ethical issues at hand.
Emphasizing the notion that just as much care must be placed in thinking about these ethical and moral details as compared to the legal and policy details, Waltemathe alluded to problems with the first-come-first-serve principle and how this principle would be harmful to the ideals of equity, fairness, and inclusion in space.
The third panelist, Robert Brumley, reviewed a hypothetical near-term-future scenario on which much of the remainder of the discussion was based. The scenario was crafted with existing technologies and capabilities in mind, and serves as a realistic example of the types of disputes we will soon face.
This hypothetical case scenario features an Australian mining company that, in 2025, deploys four lunar rovers near Shackleton Crater. These rovers move to four separate locations on the lunar surface effectively establishing a perimeter. Using onboard technology, each of the rovers analyze, or prospect, the area and determine that it contains a significant amount of lunar ice.
Subsequently, the mining company files for a mining rights claim having already surveyed and pegged the area of the claim using the rovers highlighted above. To bolster their claim, the company notes that, in addition to the pegs and surveying, they utilized the services of a licensed surveyor and established longitude and latitude coordinates for the claim.
The hypothetical scenario concludes with perhaps a fairly predictable outcome as various government bodies, particularly space agencies, air their grievances while private industry openly opposes government interference in commercial lunar development, including as it relates to the company at hand.
What is intriguing, striking, and yes, alarming, about this scenario is how likely it is manifest itself in reality in the coming years, coupled with the fact that the international space policy and law community have no cohesive standards or sets of rules for what would happen next. In order to ensure space resource utilization benefits humanity at large it is crucial to create a framework promoting fair, equitable, and just operational standards on the Moon and beyond.
Determining how we can work to develop space law such that it allows for these activities to progress in an equitable way is extremely critical, and this is especially true when discussing property rights and the implications thereof.
And indeed, this idea was captured by Dr. Hanlon, “the outer space treaty and the outer space regime is built for lawyers because everything is so great, we can argue about things for decades which is why it’s so important that we have groups like this trying to figure [it] out.” Interestingly, this statement immediately preceded an idea from Hanlon detailing how future international space law could potentially be derived from codes of conduct created by the actual companies and entities operating in the space domain.
Robert Brumley also operated as self-titled Bob the Exploiter. He utilized this role to remind everyone that the time for these discussions to get more serious and start carrying more weight has come. Reminding us that we can talk ad nauseam about what laws and jurisdictions may apply, what the role of various national and international institutions will be, and what ethical conundrums are inevitably to be associated with extraterrestrial resource extraction, but at the end of the day, he cautions, “the private sector is going to do it and they’re going to do it between now and 2025.”
A recording of the Beyond Earth Webinar “Recognizing Property and Ownership in Space” can be watched HERE
The hypothetical case study accompanying the Webinar can be accessed in pdf form HERE
Born and raised in Colorado to a family of lawyers, Jonathan G. Thorvilson has been immersed in discussions surrounding business, policy, and law for his entire life. Growing up in this environment provided him with an affinity for business and law related topics, however his true passion has always been the final frontier. Coupling this love of all things space-related with his heavily law, policy, and business centered upbringing, Jonathan has earned a BA in Political Science from the University of Colorado – Colorado Springs, as well as a MS in Space Studies from the University of North Dakota. Jonathan is currently pursuing a law degree and plans to utilize all that he has learned, and will continue to learn, in order to help advance the space industry in any way he can. Regardless of career, space is Jonathan’s calling.
