In part 1 of Property Rights in Space, the need for a system of recognition and enforcement of private property claims for land and tangible goods was established. An overview of how property rights on earth are defended and enforced was also examined. I suggest that the earth-side model of enforcing property rights in land and in tangible goods via monetary punishments should be adapted for violations of property rights in space. In the near term, private ownership of land on other celestial bodies and goods derived from space-based activities (e.g., space mining) can be protected via fines and seizure of improperly procured goods once they reach earth. No polar orbit-based beat cops or other space police required!
Although international treaty has long been the primary tool for shaping legal relationships in space, I believe that the United States has the opportunity to unilaterally create a system of recognition and enforcement of private land claims in space and tangible goods derived from space-based activities, like lunar mining, asteroid mining, and space-based manufacturing because of the United States’ status as the largest consumer market in the world and its preeminence in commercial spaceflight activities.
Commercial operations in space will be financially bound to the earth for the foreseeable future.
Currently, the United States is the largest market for commercial space and space launch operations. Given the recent growth and success of aerospace companies in the United States, I will assume that, when space is commercially exploited and settled, the United States will still be the largest, richest market for the goods and services produced. That is, the commercial potential of the United States will be so vast that no company operating amongst the stars will be able to make a return on their investment without conducting business in the US.
This creates a unique opportunity for the US to establish private ownership rights in space because companies will be economically tethered to the United States and its laws. Because of this tethering, the US is uniquely situated to unilaterally create an enforceable system of fairness to accompany even the very first commercial space-based companies, without the enormous up front cost of building a parallel system of space-based policing vehicles, policy, and courts.
If the US unilaterally created a system of private ownership in space materials such as mined ores from a defined area or goods manufactured in space, the system could be enforced by prohibiting the sale or import of any goods into the US which were produced using materials which violate ownership claims in space the United States has recognized under the new system.
These monetary penalties would effectively bar entities operating in violation of the US system from profiting in the US market, crippling their ability to earn a return on their investment in the equipment, man-power, and time required to conduct space-based commercial activities.
Because of the United States’ financial dominance, a monetary enforcement mechanism coupled with a fair, clear path to securing claims in space recognized by the US could become the de facto space and celestial ownership regime without being enacted via international treaty. If a private, US-based company like Planetary Resources or Moon Express begins mining operations of the moon or an asteroid before an international legal consensus has been reached on who owns the ore when it is returned to earth, the international community may be beaten to the punch.
Despite the circuitous path some legislation takes through Congress, international treaties sometimes take significantly longer to create. The Outer Space Treaty was not drafted and ratified until more than six years after Yuri Gagarin became the first man in space. It is very likely that a legal regime establishing clearly settling ownership issues of the mined ore in favor of the US-based company would be unilaterally created before an international treaty was drafted and ratified.
Private endeavors by companies like Bigelow Aerospace, SpaceX, and Planetary Resources, among others are opening the doors to commercial utilization of space ever wider. The need for a recognized system of recognition and enforcement of private property claims in extraterrestrial land, space resources, and goods produced off-planet is ever growing. The United States is in a unique position to unilaterally create such a system that can be enforced from the outset of the first commercial resource gathering expeditions into space. This framework should be established now, when careful consideration and debate can build a fair system, rather than later, when actual operations involving extraterrestrial resources have begun because hastily created laws are often poorly functioning laws.